MURDER and Culpable Homicide Etc.

Manoj Kumar v. State of H.P.
, (2018) 7 SCC 327

2J: Justices N V Ramana, S Abdul Nazeer; Justice Ramana delivered the judgement
Relevant Facts: injury leading to the death of the deceased
Issues:
1. Culpable homicide v murder
Issue wise judgement with reasoning:
There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following
conditions are to be satisfied namely:
(i) that the incident happened without premeditation;
(ii) in a sudden fight;
(iii) in the heat of passion;
(iv) upon a sudden quarrel; and
(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.
Thus, the totality of circumstances of the case on hand would amply show that there was a
sudden verbal quarrel and evidently there was no premeditated plan to attack the deceased.
In view of the civil disputes already pending between both the families, a minor verbal
exchange bloated into a sudden physical attack.
In the case on hand, the death is not instantaneous, but the deceased died after sometime, due
to haemorrhage. When several persons of the accused group wielding weapons attacked the
deceased, it is surprising to see only two injuries, that too, two simple injuries alone are
inflicted; of course, one such simple injury turns out to be fatal sometime later. This
circumstance demonstrates that the appellant had no intention to cause death, though he has
knowledge that the weapon used by him to inflict injury on the scalp of the deceased may
cause death. But in the absence of intention to cause death or to cause such bodily injury as
is likely to cause death, the offence does not fall within the scope of Section 300 IPC but it
will fall within Section 304 Part II IPC.
The court, therefore, hold that the appellants Manoj Kumar, Rangeel Singh and Surinder
Singh are guilty for an offence punishable under Section 304 Part II IPC and not for the
offence under Section 300 IPC. Their conviction under Section 302 IPC was, therefore, set
aside.
Concurring/Dissenting Opinions (if any): No
Jangir Singh v. State of Punjab, (2019) 13 SCC 813
2J: Justices N V Ramana, M M Shantanagoudar; Justice N V Ramana delivered the
judgement
Relevant Facts: the appellant shot down one Jaswant Singh (hereinafter referred to as “the
deceased”) by his self-loading rifle of bore 303. The incident took place when the deceased
demanded Rs 100 from the appellant, which was borrowed by the appellant previously. The
appellant got enraged due to the fact that the borrowed money was demanded in front of the
other Punjab Home Guard colleagues and it was insulting for the appellant. The appellant had
an altercation with the deceased for around 15 minutes, pursuant to which the appellant fired
at him and consequently, he died. the High Court reversed the judgment of acquittal of the
trial court by reappreciating evidence in a different manner and taking a different view.
Issues:
1. Whether the case was one of private defence?
On appreciation of facts the court stated, “Now, to consider the question as to whether the
exercise of right of private defence by the appellant-accused was legitimate or not, it is
undisputed that the fateful incident at the hands of appellant was pursuant to an altercation
with the deceased for around 15 minutes, in the presence of other colleagues. Both the
deceased and the appellant-accused were altercating face-to-face and standing at a distance of
10 feet from each other”. This shows that they could see the facial expressions of each other
clearly and comprehend the apprehending circumstances accordingly.
Taking note of the fact that owing to the imminent danger perceived by the appellant from the
aiming of rifle at him by the deceased, he fired at the deceased and killed him. This, in our
opinion comes within the ambit of right to private defence, however, it clearly traverses
beyond the legitimate exercise of the same. The appellant-accused chose to shoot on a vital
part of the body i.e. chest to safeguard himself from the imminent threat. However, the
accused could have avoided the vital part of the deceased. But, we do not find absence of
good faith in exercise of right of private defence. However, having regard to the situs of the
injury (i.e. the chest of the deceased), it is clear that the accused has exceeded the power
given to him in law and has caused the death of the deceased against whom he exercised
right of private defence without premeditation. Thus, offence committed by the appellant-
accused will fall under Section 304 Part I IPC.
The law on this aspect of causing disproportionate harm and exceeding right to private
defence is amply clear. In cases of disproportionate harm leading to death of the aggressor,
sentence under Section 304 Part I is the appropriate sentence. Thus, the court set aside the
conviction under Section 302 IPC passed by the High Court and converted the same to
Section 304 Part I IPC.
Bhagirath v. State of M.P., (2019) 17 SCC 581
2J: Justices R Banumathi, Indira Banerjee; Justice Banerjee delivered the judgement
Relevant Facts: In the wordy quarrel between the deceased and the appellant-accused, the
appellant inflicted the farsi blow on the right side of skull near ear. Further, all other accused
(since acquitted) also inflicted injuries on the deceased Bherulal. On completion of
investigation, the appellant-accused and other accused were charge-sheeted for the offence
under Sections 148/325/302 read with Section 149 IPC.
Issues:
1. whether conviction of the appellant under s. 302 justified?
The Fourth Exception to Section 300 IPC deals with death committed in sudden fight without
premeditation. The sudden fight implies the absence of premeditation. Even as per the
evidence of PW 6, there was a wordy quarrel and, in that quarrel, the appellant inflicted farsi
blow on the head of the deceased. As the injuries inflicted on the deceased in the sudden fight
between the deceased and the accused party, there was no premeditation. One injury was
caused to the deceased by farsi blow on the head which indicates that the appellant has not
taken undue advantage of the deceased.
The manner, the occurrence and the injury inflicted on the deceased attract Exception 4 to
Section 300. In the facts and circumstances of the case, the conviction of the appellant is
modified under Section 304 Part I IPC and the sentence is reduced to the period already
undergone.
In the result, the conviction of the appellant under Section 302 IPC was modified as
conviction under Section 304 Part I IPC and sentence of the appellant was reduced to the
period already undergone by him.
Sunny Khanna v. State of Chhattisgarh, (2019) 11 SCC 381
2J: Justices R Banumathi, Indira Banerjee; Justice Banumathi delivered the judgement
Relevant Facts: An altercation took place between deceased Irfan alias Golu and Chotu
which resulted in heated arguments. Thereafter, both the appellants Sunny Khanna and
Pradeep Singh alias Jugu caught hold of the deceased Irfan alias Golu and the juvenile
accused Chotu inflicted stabbed injuries twice on abdomen and right elbow and Irfan alias
Golu fell down. At that time, second deceased Anil Chandrakar rushed to save Irfan alias
Golu and then both the appellants are alleged to have caught hold of him and juvenile
accused Chotu assaulted him by knife and caused injuries. Complainant Aavez Khan (PW 1)
took the deceased persons to hospital where deceased Irfan alias Golu was declared dead.
Deceased Anil Chandrakar also succumbed to injuries twenty days after the incident. the
High Court dismissed the appeal filed by the appellants thereby confirming the conviction of
the appellants under Section 302 IPC read with Section 34 IPC.
Issues:
1. 302 v. 304 IPC?
On perusal of complete facts, the court remarked:
As far as the conviction of the appellants under Section 302 IPC regarding the death of Irfan
alias Golu is concerned, from the evidence it emerges that there were heated arguments,
scuffle and sudden fight between the appellant and the decased persons. It is in these
circumstances, the juvenile accused Chotu inflicted injuries on deceased Irfan alias Golu
while the appellants herein held the deceased Irfan alias Golu.
As the occurrence took place in the course of sudden fight between the deceased and the
accused party, the occurrence would fall under Exception 4 to Section 300 IPC. The injuries
inflicted on the deceased Irfan alias Golu is on the backside piercing the left lung which
shows the intention of the juvenile accused who inflicted the injury. Keeping in view the
nature of the injuries and considering the fact that the appellant-accused had not taken
undue advantage of the deceased and in the facts and circumstances of the case, the
conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as
the one under Section 304 Part I IPC. It is submitted that both the appellants have undergone
imprisonment for more than ten years.
Bhagwat v. State of Maharashtra, (2019) 14 SCC 444
2J: Justices Navin Sinha, K. M. Joseph; Justice Sinha delivered the judgement
Relevant Facts: The appellant was convicted under Section 302 IPC and sentenced to life
imprisonment for the death of his wife at home by burn injuries on 6-4-2003. The deceased
expired the next day. The High Court acquitted [Bhagwan Ganpat Badgujar v. State of
Maharashtra, Criminal Appeal No. 351 of 2004, order dated 13-4-2005 (Bom)] him of the
charge under Section 498-A IPC regarding dowry demand.
Issues:
1. Whether the conviction of the appellant under Section 302 IPC deserves to be altered
to one under Section 304 Part II IPC?
The court, on perusal of facts, observed:
There is absolutely no material on record to suggest any assault under grave and sudden
provocation. The conduct of the appellant in absconding for approximately three months
from the date of the occurrence, till he was taken into custody, was contrary to normal human
behaviour and belies his claim to innocence. It is not possible to accept the plea of any burn
injuries on his hands three months later.
The deceased died a homicidal death inside the matrimonial home. In the circumstances
noticed hereinbefore, undoubtedly the appellant owed an explanation under Section 106 of
the Evidence Act, 1872 with regard to how the deceased had met a homicidal death inside the
house. He failed to discharge the onus completely. The aforesaid, in our opinion, are
sufficient to uphold the conviction of the appellant.
The conviction of the appellant therefore called for no interference. The appeal was
dismissed.
State of Rajasthan v. Leela Ram, (2019) 13 SCC 131
2J: Justices D Y Chandrachud, M R Shah; Justice Chandrachud delivered the judgement
Relevant Facts: the deceased Ram Kumwar Swami was proceeding for some work at a
chakki. While he was passing by the hand pump near the house of Sriram Swami, three
persons — Rajesh, Jagdish and Leela Ram (the respondent herein) attacked the deceased and
caused serious injuries to him. The case of the prosecution was that the respondent inflicted
an axe injury on the skull of the deceased which was the cause of death. The High Court, on
appeal find that the incident took place without premeditation, and hence the case falls within
Exception 4 of Section 300 of the Penal Code.
Issues:
1. Death by single blow, murder?
In Mahesh Balmiki v. State of M.P. [Mahesh Balmiki v. State of M.P., (2000) 1 SCC 319 :
2000 SCC (Cri) 178] , this Court while deciding the question of whether a single blow with a
knife on the chest of the deceased would attract Section 302 IPC, held thus: (SCC pp. 322-23,
para 9)
“9. … there is no principle that in all cases of a single blow Section 302 IPC is not attracted.
A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases
under Section 304 IPC and in some other cases under Section 326 IPC. The question with
regard to the nature of offence has to be determined on the facts and in the circumstances
of each case. The nature of the injury, whether it is on the vital or non-vital part of the
body, the weapon used, the circumstances in which the injury is caused and the manner in
which the injury is inflicted are all relevant factors which may go to determine the required
intention or knowledge of the offender and the offence committed by him. In the instant case,
the deceased was disabled from saving himself because he was held by the associates of the
appellant who inflicted though a single yet a fatal blow of the description noted above. These
facts clearly establish that the appellant had the intention to kill the deceased. In any event, he
can safely be attributed the knowledge that the knife-blow given by him was so imminently
dangerous that it must in all probability cause death or such bodily injury as is likely to cause
death.”
The court observed that the judgment of the High Court is manifestly perverse and is totally
contrary to the evidence on the record which goes against the submission that as the death
was on account of single blow the appellant should not be convicted of murder. The
interference of this Court is warranted to obviate a complete failure or miscarriage of justice.
We allow the appeal and while setting aside the judgment of the High Court, restore the
conviction of the respondent by the trial court under Section 302 of the Penal Code.
State of Karnataka v. Yenkareddy, (2018) 18 SCC 768
Relevant Facts: The case in a nutshell is as follows: on 29-1-1995 the deceased
Siddaramreddy went to his field along with his wife Annapoornama (PW 3), and daughter
Tayamma (PW 4) for keeping watch over the harvested crops. The respondents, Accused 1 to
8, are said to have formed an unlawful assembly and attacked Siddaramreddy by beating him
with clubs.
Upon appreciation of evidence, the trial court found Accused 1 guilty for the offence
punishable under Section 302 IPC and Accused 2 to 5 and 7 were found guilty for the offence
punishable under Section 302 IPC read with Section 149 IPC. In the appeal, the conviction of
Accused 4 and 5 was set aside and they were acquitted on the ground that no specific act was
attributed to them. So far as the other accused are concerned, the conviction of Accused 1, 2,
3 and 7 was modified into Section 304 Part II read with Section 149 IPC as aforesaid.
Issues:
1. A
The court observed,
Insofar as the modification of the conviction from Section 302 IPC to Section 304 Part II IPC
and the reduction of the sentence of imprisonment in respect of other accused are concerned,
the High Court has recorded its reasoning in para 15 of the order. The High Court has
observed that Accused 1 alone had previous enmity with the deceased Siddaramreddy and the
other accused appeared to have joined Accused 1 only to help him. Considering the weapons
used, namely, sticks and the nature of the injuries, the High Court thought it fit to modify the
sentence of imprisonment under Section 302 IPC to Section 304 Part II IPC. Occurrence was
of the year 1995 and at this distant point of time and also in view of the findings by the High
Court in para 55, we are not inclined to interfere with the impugned order
[Yenkareddy v. State of Karnataka, 2003 SCC OnLine Kar 926].
Lakshmi Chand v. State of U.P., (2018) 9 SCC 704
2J: Justices Navin Sinha, K M Joseph; Justice Sinha delivered the judgement
Relevant Facts: The two appellants were convicted under Section 323 read with Section 34,
Section 324 read with Section 34 and Section 307 read with Section 34 IPC. The bullocks of
the appellants strayed into the neighbouring compound of the deceased, Prem Lal who drove
them out with a lathi, leading to an altercation with the accused Kashmira, since deceased.
The latter went back to his house, and returned immediately armed with a lathi, accompanied
by the appellants, who were also armed with an iron rod and a knife respectively. They
together assaulted the deceased Prem Lal.
The High Court, in appeal, after consideration of the evidence, concluded [Kashmira v. State,
2017 SCC OnLine All 2786] that common intention could not be inferred in the facts of the
case. The appellants were held liable for their individual acts. The conviction of the
appellants under Section 302 read with Section 34 IPC was set aside. Further, holding that the
assault on the deceased had taken place on the spur of the moment, preceded by an
altercation, without any premeditation, the conviction of Appellant 2 was altered to one under
Section 304 Part II read with Section 34 IPC.
Issues:
1. A
The court observed: The occurrence undoubtedly had taken place on the spur of the moment
without premeditation. It cannot be said that the appellants had any common intention to kill
or knowledge that death was likely to ensue. The appellants only intended to vent their ire
against their neighbour for having assaulted their bullocks. Having been better equipped with
an iron rod and a knife, there was no occasion for them to scamper away when confronted by
the others especially when PW 1 was an old man aged about 61 years. If there existed no
common intention each appellant was liable for his own individual acts as observed in
Darshan Singh v. State of Punjab, (2009) 16 SCC 290
The deceased is stated to have succumbed to the injury on the thigh leading to the cut of the
femoral artery. The injury is attributable to Appellant 2. The absence of any common
intention makes him individually answerable. His conviction under Section 304 Part II IPC
therefore calls for no interference. But considering that the occurrence took place on the spur
of the moment, the assault was not made on a vital part of the body, that the assailant ran
away upon being challenged, the genesis of the assault lay in a dispute between neighbours
with regard to strayed cattle, and that the occurrence had taken place long ago in 1980, we are
satisfied to reduce the sentence of Appellant 2 to a period of two years relying
on Maqsood [Maqsood v. State of U.P., (2016) 15 SCC 748 : (2016) 4 SCC (Cri) 772] .
Resultantly, the conviction of the appellants under Section 323 read with Section 34 and
Section 324 read with Section 34 was not interfered with. The conviction of Appellant 2
under Section 304 Part II IPC was altered from eight years to two years.
State of M.P. v. Gangabishan, (2018) 9 SCC 574
2J: Justices A M Sapre, S Abdul Nazeer; Justice Nazeer delivered the judgement
Relevant Facts: Dinesh (PW 1) and his brother Rajesh (deceased) were in their field situated
in the forest, for the purpose of watching the crops. At that juncture, the accused persons
reached over there having lathis and swords in their possession except Accused 1
Gangabishan alias Vishnu, who was having 12 bore gun and started assaulting Rajesh with
their respective weapons. Accused 1 caused gunshot injury on the left thigh of the deceased
by 12 bore gun because of which he fell down on the ground. Dinesh raised cry. However, no
one came to their rescue. Somehow he managed to run away from the scene of occurrence
and disclosed about the incident to Sidhnath, Ramsingh, Gopal Khati and Laxminarayan
Khati. They all brought the deceased Rajesh on a cot from the field and thereafter took him in
a mini truck. The deceased Rajesh became unconscious.
The trial court after undertaking a full-fledged trial found the accused guilty under Sections
302/149 IPC.
Issues:
1. A
It was submitted that the High Court was not justified in setting aside the conviction and
sentence of Respondent 1 under Section 302 IPC and imposing lesser punishment of ten years
of RI under Section 304 (Part I) IPC.
The court observed: “Insofar as the deceased Rajesh is concerned, he suffered gunshot injury
and entry wound was on back of his left thigh. This shows that the shot was fired from his
back side. There was no blackening, charring on exit wound. Blackening and charring were
present on entry wound which shows that the gunshot was fired within the range of 6 to 8 ft.
In view of the medical evidence, it would be easy to infer that if Accused 1 was having
intention to commit murder of the deceased and used firearm for that purpose, the injury
could have been caused on upper limb, above waist of the deceased but the part chosen for
causing injury was the back portion of left thigh. Thus, though Accused 1 was not having
intention to commit murder of the deceased but the act was to cause bodily injury which was
likely to cause death. Therefore, the High Court found that he would be responsible for
commission of culpable homicide not amounting to murder punishable under Section 304
(Part I) IPC. The High Court after scanning the entire evidence also held that the respondents
were not having an intention to commit murder of the deceased Rajesh. We do not find any
infirmity in the judgment of the High Court”.
Accordingly, the appeal was dismissed.
Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429
2J: Justices Ranjan Gogoi, R Banumathi; Justice Banumathi delivered the judgement
Relevant Facts: Appellant Devidas (A-7) attacked the deceased with knife on his foot and
legs. Other accused against whom the appeal is abated assaulted the deceased with
motorcycle chain and sticks. On seeing the accused armed with deadly weapons, PWs 3 and 4
got frightened and went inside the house and stood near the window of the house and
witnessed the occurrence. Due to the assault, the deceased fell down from the cot having
sustained grievous injuries.
Issues:
1. Whether conviction under s. 302 justified?
The court observed,
“The deceased had sustained as many as twenty-six injuries. PWs 1 to 3 have consistently
spoken about the incident and that the appellants were armed with deadly weapons and the
overt acts of the appellants which is corroborated by the medical evidence and also by
recovery of weapons from the appellant-accused. As observed by the High Court, the trial
court gave importance to insignificant aspects like “smearing of the thighs and legs of the
body with mud” and the conduct of the witnesses as to why they have not reacted in a
particular manner and while doing so, the trial court failed to appreciate the substratum of the
prosecution case. The High Court on being satisfied that the conclusion reached by the trial
court was erroneous, reversed the order of acquittal recorded by the trial court. We do not
find any good ground to interfere with the judgment [State of Maharashtra v. Ragho Dharma
Koli, 2015 SCC OnLine Bom 4197] of the High Court”.
In the result, the conviction of the appellants under Section 302 IPC read with Section 149
IPC is confirmed and the sentence of life imprisonment imposed upon each of them is
confirmed and this appeal is dismissed.
Manoj Kumar v. State of H.P., (2018) 7 SCC 327
2J: Justices N V Ramana, S Abdul Nazeer; Justice Ramana delivered the judgement
Relevant Facts: injury leading to the death of the deceased
Issues:
1. Culpable homicide v murder
There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following
conditions are to be satisfied namely:
(i) that the incident happened without premeditation;
(ii) in a sudden fight;
(iii) in the heat of passion;
(iv) upon a sudden quarrel; and
(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.
Thus, the totality of circumstances of the case on hand would amply show that there was a
sudden verbal quarrel and evidently there was no premeditated plan to attack the deceased.
In view of the civil disputes already pending between both the families, a minor verbal
exchange bloated into a sudden physical attack.
In the case on hand, the death is not instantaneous, but the deceased died after sometime, due
to haemorrhage. When several persons of the accused group wielding weapons attacked the
deceased, it is surprising to see only two injuries, that too, two simple injuries alone are
inflicted; of course, one such simple injury turns out to be fatal sometime later. This
circumstance demonstrates that the appellant had no intention to cause death, though he has
knowledge that the weapon used by him to inflict injury on the scalp of the deceased may
cause death. But in the absence of intention to cause death or to cause such bodily injury as
is likely to cause death, the offence does not fall within the scope of Section 300 IPC but it
will fall within Section 304 Part II IPC.
The court, therefore, hold that the appellants Manoj Kumar, Rangeel Singh and Surinder
Singh are guilty for an offence punishable under Section 304 Part II IPC and not for the
offence under Section 300 IPC. Their conviction under Section 302 IPC was, therefore, set
aside.
Shajahan v. State, (2018) 13 SCC 347
2J: Justices Ranjan Gogoi, R Banumathi; Justice Banumathi delivered the judgement
Relevant Facts: The accused went with common intention to commit robbery in a
pawnbroking shop. In the course of committing robbery, Shajahan (A-2) is alleged to have
tightly held the legs of deceased Muthukrishnan who was sleeping inside the shop and Babu
alias Nawab Sahib (A-4) is alleged to have sat on his chest and constricted his neck and tied
the jute rope around the neck of Muthukrishnan and strangled him to death. Other accused
robbed jewellery about 4.788 kg of gold and 5.595 kg of silver, total worth about Rs
12,00,000.
Issues:
1. S. 302, S. 386 IPC
The Court Remarked:
Section 396 IPC prescribes punishment for dacoity with murder. In the course of commission
of dacoity, if a dacoit commits murder, all his companions who are conjointly committing
dacoity, are liable to be convicted under Section 396 IPC, although they may have no
participation in the murder beyond the fact of participation in the dacoity. The obligation of
the court in the matter of imposing the sentence “death or imprisonment for life” is in the
same sequence both for Sections 302 and 396 IPC.
Though the offence under Section 396 IPC is to be viewed with seriousness, for the
conviction under Section 396 IPC, larger discretion is vested with the court insofar as there is
possibility of imposing a penalty lesser than death or imprisonment for life for the conviction
under Section 396 IPC.
That the offence under Section 396 IPC is to be viewed with seriousness, [Dinesh v. State of
Rajasthan, (2006) 3 SCC 771 referred] especially, when the dacoits are armed.
Gurwinder Singh v. State of Punjab, (2018) 16 SCC 525
2J: Justices Ranjan Gogoi, R. Banumathi; Justice Banumathi delivered the judgement
Relevant Facts: deceased Harbhajan Singh was attacked with axe on the head and he
sustained multiple fractures, right frontotemporal and temporoparietal region infarct in the
right fronto-temporo-parietal region of the brain, haemorrhagic contusions in bilateral
temporal region and right parietal region. The head injury caused to Harbhajan Singh was
sufficient in the ordinary course of nature to cause death.
Issues:
1. whether the offence would fall under Section 304 Part I IPC or Part II IPC.
The court referred to the judgement in Nankaunoo v. State of U.P., (2016) 3 SCC 317
where it was held that: The emphasis in clause three of Section 300 IPC is on the sufficiency
of the injury in the ordinary course of nature to cause death. The sufficiency is the high
probability of death in the ordinary course of nature. When the sufficiency exists and death
follows, causing of such injury is intended and causing of such offence is murder. For
ascertaining the sufficiency of the injury, sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is caused and sometimes both are
relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the
sufficiency of injury to cause death in the ordinary course of nature must be proved and
cannot be inferred from the fact that death has, in fact, taken place.”
Keeping in view the above principle, when we examine the facts of the present case, the
deceased sustained head injuries with multiple fractures, right frontotemporal and
temporoparietal region infarct in the right fronto-temporo-parietal region of the brain,
haemorrhagic contusions in bilateral temporal region and right parietal region. The weapon
used in the manner in which the injury was inflicted clearly establishes that the appellants
intended to cause the injury which is sufficient in the ordinary course of nature to cause
death. Having regard to the facts and circumstances of the case, we are of the view that the
conviction of the appellants under Section 302 IPC be modified as conviction under
Arjun v. State of Chhattisgarh, (2017) 3 SCC 247
2J: Justices Dipak Misra, R Banumathi; Justice Banumathi delivered the judgement
Relevant Facts: the appellant-accused came to the field and they stopped the deceased and
his labourers from cutting one tree. Deceased Ayodhya Prasad alias Rahasu told the
appellants that he was the owner of the tree, therefore, he was cutting the tree which resulted
in quarrel between the parties. The appellants assaulted the deceased with katta, gandasa and
stone. The deceased fell down and sustained injuries on his head and his brain matter came
out. He was taken to Bilaspur for treatment but he died on the way to the hospital.
Issues:
1. whether the conviction of the appellants under Section 302 IPC is sustainable?
The court observed: The accused, as per the version of PW 6 and eyewitness account of
other witnesses, had weapons in their hands, but the sequence of events that have been
narrated by the witnesses only show that the weapons were used during altercation in a
sudden fight and there was no premeditation. Injuries as reflected in the post-mortem report
also suggest that appellants have not taken “undue advantage” or acted in a cruel manner.
Therefore, in the fact situation, Exception 4 under Section 300 IPC is attracted. The incident
took place in a sudden fight as such the appellants are entitled to the benefit under Section
300 Exception 4 IPC.
When and if there is intent and knowledge, then the same would be a case of Section 304 Part
I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily
injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound
caused on the head i.e., right parietal region and right temporal region and also occipital
region, the injuries indicate that the appellants had intention and knowledge to cause the
injuries and thus it would be a case falling under Section 304 Part I IPC.
In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC
was modified as conviction under Section 304 Part I IPC and the sentence is reduced to the
period already undergone and these appeals are partly allowed accordingly.
Surain Singh v. State of Punjab, (2017) 5 SCC 796
2J: Justices A K Sikri, R K Agrawal; Justice Agrawal delivered the judgement
Relevant Facts: Both the parties were facing proceedings under Sections 107/151 of the
Code of Criminal Procedure, 1973. While visiting the magistrate on one fateful day, both the
sides started quarrelling and had a heated exchange of words as Surain Singh (the appellant-
accused) objected to the presence of Bhajan Singh, who was relative of Amrik Singh and not
a party to the proceedings. Surain Singh the appellant-accused, took out his kirpan and gave a
blow to Bhajan Singh. When the complainant party tried to stop the appellant-accused, he
gave a kirpan-blow to Mander Singh. He also assaulted Harbans Singh (since deceased) with
kirpan. Darshan Singh also took out his kirpan and started giving blows to Santa Singh (since
deceased). The injured were taken to Guru Gobind Singh Medical Hospital Faridkot, where
Santa Singh and Harbans Singh succumbed to their injuries.
Issues:
1. whether the appellant-accused has made out a case for conviction under Section 304
Part II instead of Section 302 IPC?
 The help of Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight, (c) without the offenders having taken
undue advantage or acted in a cruel or unusual manner, and (d) the fight must
have been with the person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be noted that the “fight”
occurring in Exception 4 to Section 300 IPC is not defined in IPC.
 For the application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that
the offender has not taken undue advantage or acted in a cruel or unusual
manner. The expression “undue advantage” as used in the provision means
“unfair advantage”.
On facts the court observed: In the instant case, it is evident from the materials on record
that there was bitter hostility between the warring factions to which the accused and the
deceased belonged. Criminal litigation was going on between these factions. It is also proved
from the material on record that the attack was not premeditated and preplanned. Both the
parties were present in the Court of Executive Magistrate, Faridkot at the relevant time with
regard to the proceedings under Sections 107/151 of the Code. When the appellant-accused
objected to the presence of a member of the opposite side, the scuffle started between the
parties which resulted into death of two persons. The conduct of the appellant-accused that he
at once took out his kirpan and started giving blows to the opposite party proves that the
attack was not premeditated and it was because of the spur of the moment and without any
intention to cause death. The occasion for sudden fight must not only be sudden but the party
assaulted must be on an equal footing in point of defence, at least at the onset.
The weapon used in the fight between the parties is kirpan which is used by “Amritdhari
Sikhs” as a spiritual tool. In the present case, the kirpan used by the appellant-accused was a
small kirpan. In order to find out whether the instrument or manner of retaliation was cruel
and dangerous in its nature, it is clear from the deposition of the doctor who conducted
autopsy on the body of the deceased that stab wounds were present on the right side of the
chest and of the back of abdomen which implies that in the spur of the moment, the appellant-
accused inflicted injuries using kirpan though not on the vital organs of the body of the
deceased but he stabbed the deceased which proved fatal.
The injury intended by the accused and actually inflicted by him is sufficient in the ordinary
course of nature to cause death or not, must be determined in each case on the basis of the
facts and circumstances. In the instant case, the injuries caused were the result of blow with a
small kirpan and it cannot be presumed that the accused had intended to cause the inflicted
injuries. The number of wounds caused during the occurrence is not a decisive factor but
what is important is that the occurrence must have been sudden and unpremeditated and the
offender must have acted in a fit of anger. Of course, the offender must not have taken any
undue advantage or acted in a cruel manner. It is clear from the materials on record that the
incident was in a sudden fight and we are of the opinion that the appellant-accused had not
taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person
in the heat of the moment picks up a weapon which is handy and causes injuries, one of
which proves fatal, he would be entitled to the benefit of this Exception provided he has not
acted cruelly.
Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I
and if it is only a case of knowledge and not intention to cause murder and bodily injury then
the same would fall under Section 304 Part II.
The scuffle took place in the heat of passion and all the requirements under Section 300
Exception 4 IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300
IPC was attracted to the fact situations and the appellant-accused is entitled to this benefit, the
court observed.
Ramesh v State of Uttarakhand 2016 SCC OnLine SC 1798
2J: Justices A. K. Sikri and N. V. Ramana; Justice Sikri delivered the judgement.
Relevant Facts: Appellants were accused, along with two more persons for committing
offence punishable under Section 302 read with Section 34. The appellants are Ramesh,
Bhola, Paramjeet Singh and Khalil. Accused Paramjeet Singh and Ramesh were also charged
under Section 25 of the Arms Act. The accused persons did not examine any witness in
defence but in the statements recorded under Section 313 of Code of Criminal Procedure (for
short, ‘Cr.P.C.’) they denied the charges levelled against them. The Additional Sessions
Judge acquitted all the accused persons of all the charges, as according to the trial court, the
prosecution had totally failed to prove the case against the accused persons. Specific finding
was recorded to the effect that it was a case of no evidence relating to blind murder which
had taken place in the midnight.
The High Court has overturned the verdict of the trial court, holding that the entire evidence
on record leads to the conclusion that these four persons had committed the offence with
which they were charged. The appellants preferred appeal to the apex court.
Issues:
1. Can High Court overturn the verdict of the lower court without compelling reasons as
to facts and law?
Issue wise judgement with reasoning: The apex court stated that in a case like this when the
trial court acquitted the accused persons of their charges, the High Court could not have
reversed the finding merely on the basis that other view, as recorded by the High Court,
appeared to it to be a plausible view. Such an approach by the High Court, against the
judgment of the acquittal, is impermissible. In this context, we may usefully refer to the case
of Kalyan v. State of U.P.1 which warrants for compelling reasons. The same view is also
taken in judgements like Bhim Singh v. State of Haryana,2 Kallu v. State of M.P.3
Ganpat v. State of Haryana,4 all of which require compelling reasons to be furnished by the
High Court is the judgement of lower court is to be unturned.
The court observed that as the entire judgment rendered by the High Court does not even a
whisper as to how the view taken by the trial court was perverse or improbable, the
judgement of high court was unreasonable therefore acquittal of all the accused is justified.
1
(2001) 9 SCC 632.
2
(2002) 10 SCC 461.
3
(2006) 10 SCC 313.
4
(2010) 12 SCC 59.
Stalin v State (2020) 9 SCC 524
3J: Justices Ashok Bhushan, R. Subhash Reddy, M. R. Shah; Justice Shah delivered the
judgement
Relevant Facts: It was the case on behalf of the appellant-accused that as it was a
case of single injury, Section 302 IPC shall not be attracted and the case would
fall under Section 304 Part II IPC.
Issues:
1. Whether the accused can be held liable for the offence of murder in the case of single
blow or injury caused to the deceased?
2. Whether the death caused without any motive but due to sudden quarrel be covered
u/s 302 or 304 IPC?
1. It cannot be laid down as a rule of universal application that whenever the death occurs on
account of a single blow, the section 302 IPC is ruled out. It has to be seen that whether the
act by which the death was caused was done with an intention of causing death or knowledge
that it is likely to cause death but with the intention to cause death.
2. Though the incident was caused due to sudden quarrel, without premeditation, however,
since the accused inflicted the injury with knife and the injury was inflicted on vital parts of
body, it is presumed that causing such bodily injury was likely to cause death. Hence,
covered in part I of section 304 IPC.
Jugut Ram v State of Chhattisgarh AIR 2020 SC 4395
3J: Justices Nariman, Navin Sinha and Indira Banerjee; Justice Sinha delivered the
judgement]
Relevant Facts: The death of deceased was due to blow by a lathi.
Issues:
1. Section 302 and 304 IPC – whether death caused due to assault by lathi falls under the
ambit of Section 302 IPC?
2. A lathi is a common item carried by a villager in this country, linked to his identity.
The fact that it is also capable of being used as a weapon of assault, does not make it a
weapon of assault simpliciter. In a case of assault on head by lathi, without any
premeditation, it is always a question fact in each case whether there was intention to
cause death or only knowledge that death was likely to occur. The circumstances,
manner of assault, nature and number of injuries will all have to be considered
cumulatively to decipher the intention or knowledge, as the case may be.
3. The conviction of accused was altered from 302 to 304 Part II (34) of IPC.
Anant Kamilya v State of West Bengal 2020 SCC OnLine SC 8.
2J: Justices Ashok Bhushan, M. R. Shah; Justice Shah delivered the judgement
Relevant Facts: Not relevant
Issues:
1. Whether the death caused without any motive but due to sudden quarrel be covered
u/s 302 or 304 IPC?
2. Section 302 and 304 IPC – Death caused due to assault by lathi.
The incident was caused due to sudden quarrel, without premeditation, without intention to
cause death. However, since the accused inflicted the injury with lathi and the injury was
inflicted on the head of the accused, it is presumed that there does not appear to be any
premeditation or intention to kill the deceased. The death resulted due to injury in quarrel.
Hence, the case would fall under the Exception 4 to section 300 IPC.
Therefore, the conviction of accused was altered from 302 to 304 Part I of IPC.
R. Jayapal v. State of Tamil Nadu (2019) 8 SC 342
2J: Justices Abhay Manohar Sapre, Dinesh Maheshwari; Justice Maheshwari delivered the
judgement
Relevant Facts: Not important
Issues:
1. On sections 300 and 304, exceptions
In the words of the judgement:
In view of the foregoing and in the overall circumstances of this case, we are inclined to
accept the alternative case of the appellant that the incident in question took place without
any premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, when the
deceased attempted entry into his house; and the appellant did neither take any undue
advantage nor acted in a cruel or unusual manner. A fortiori, we are inclined to extend the
benefit of Exception 4 to Section 300 IPC to the appellant.
However, the act of the appellant leading to the death having been with the intention of
causing such bodily injury as is likely to cause death, the appellant deserves to be convicted
for the offence under Part I of Section 304 IPC.
Khokan v. State of Chhatisgarh 2021 SCC OnLine SC 83
2J: Justices D. Y. Chandrachud, M.R. Shah; Justice Shah delivered the judgement
Relevant Facts: Ingredients of S. 300 IPC
Issues:
1.
Issue wise judgement with reasoning: Section 300 of the IPC is in two parts. The first part
is when culpable homicide can be said to be the murder and the second part is the exceptions
when the culpable homicide is not murder. The relevant part of Section 300 IPC for our
purpose would be clause 4 to Section 300 and exception 4 to Section 300 IPC. As per clause
4 to Section 300 IPC, if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to
cause death, and commits such act without any excuse for incurring the risk of causing death
or such injury, such culpable homicide can be said to be the murder. However, as per
exception 4 to Section 300, culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner. As per
explanation to exception 4 to Section 300 IPC, it is immaterial in such cases which party
offers the provocation or commits the first assault.
Shatrughna Baban Meshram v State of Maharashtra (2021) 1 SC 596
3J: Justices U U Lalit, Indu Malhotra, Krishna Murari; Justice Lalit delivered the judgement
Relevant Facts: rape, grave injury to the victim, would that amount to murder
Issues:
1. S. 300 (fourthly), scope
According to clause fourthly under Section 300 IPC, the offence may come under the
category of culpable homicide amounting to murder “if the person committing the act knows
that it is so imminently dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death, and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid”.
According to the rule laid down in Virsa Singh v. State of Punjab, 1958 SCR 1495 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 offence would be “murder”. Illustration (c) appended to Section 300 clearly brings out
this point.
Bhagwan Singh v. State of Uttarakhand, (2020) 14 SCC 184
3J: Justices S. A. Bobde CJ., Surya Kant, B. R. Gavai; Judge name not mentioned.
Relevant Facts: Celebratory firing from gun, wedding of the son of the appellant, 2 people
died, three injured.
Issues:
1. S. 299, 300
Ingredients reiterated: Both Sections 299 and 300 deal with instances in which death is
caused by an act with the intention of causing such bodily injury as the offender knows to be
likely to cause death of the person to whom injury is inflicted. These provisions also deal
with cases where there is no intention of either causing death or a bodily injury which is
ordinarily sufficient to cause death. The absence of intention to cause death or bodily injury
which is in the ordinary course of nature likely to cause death is, therefore, not conclusive.
What is required to be seen is whether the act is one where the offender must be deemed to
have had the knowledge that he was likely, by such act, to cause death.
Analysis: The evidence on record contrarily shows that the appellant aimed the gun towards
the roof and then fired. It was an unfortunate case of misfiring. The appellant of course
cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place
where his own guests had gathered to attend the marriage ceremony.
The court observed that the appellant did not take any reasonable safety measure, like to fire
the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the
roof and fired the shot. He was expected to know that pellets could cause multiple gunshot
injuries to the nearby persons even if a single shot was fired. The appellant was, thus, guilty
of an act, the likely consequences of which including causing fatal injuries to the persons
being in a close circuit, are attributable to him. The offence committed by the appellant, thus,
would amount to “culpable homicide” within the meaning of Section 299, though punishable
under Section 304 Part 2 IPC.
Conclusion: For the above stated reasons, the appeal was allowed in part. The conviction of
the appellant under Section 302 IPC was modified to Section 304 Part 2 IPC and that under
Section 307 IPC was altered to Section 308 IPC. As a necessary corollary, the sentence of life
imprisonment awarded to the appellant for committing the offence under Section 302 IPC,
was reduced to 10 years' rigorous imprisonment and the sentence awarded to him under
Section 307 IPC was substituted with Section 308 IPC, without any alteration in the fine
imposed by the trial court.
Sankath Prasad v. State of U.P., (2020) 12 SCC 564
2J: Justices D Y Chandrachud, Hrishikesh Roy; Justice Chandrachud delivered the opinion of
the court
Relevant Facts:
The complainant (Gaya Prasad), was returning home after answering a call of nature. When
he reached the disputed plot, he noticed that Durga Prasad, the brother of the appellant, was
getting a mound dug with the help of two labourers, one of whom was Ram Nath. When the
complainant objected, Durga Prasad stated that he was not committing any wrong. At that
point, the appellant intervened in the altercation and there was an exchange of words. The
appellant rushed to his house and returned with a country-made pistol. While he was aiming a
shot at the complainant Gaya Prasad (PW 1), Uma Shanker, the son of the complainant,
caught hold of the appellant from behind. The appellant managed to free himself and shot
Uma Shanker who fell down as a consequence of a firearm injury. Uma Shanker succumbed
to his injuries.
Issues:
1. Does the said offence of shooting and killing falls under S. 302? Or the conviction
could be converted to S. 304 (II)?
The Court Observed:
Having regard to the circumstances of the case, we are of the view that the conviction under
Section 302 IPC should be converted to one under Section 304 Part I. We accordingly hold
the appellant guilty of an offence under Section 304 Part I IPC and sentence him to
imprisonment for a term of ten years.
Reasoning: The facts, as they have emerged from the record, indicate that the incident had
taken place on the spur of the moment and was a fallout of an altercation over the excavation
of a mound by the brother of the appellant.
Virender v. State of Haryana, (2020) 2 SCC 700
2J: Justices M. M. Shantanagoudar, K M Joseph; Justice Shantanagoudar delivered the
judgement
Relevant Facts: Facts are not relevant
Issues:
1. S. 34 coupled with S. 302
In order to invoke the principle of joint liability in the commission of a criminal act as laid
down in Section 34, the prosecution should show that the criminal act in question was done
by one of the accused persons in furtherance of the common intention of all. If this is shown,
the liability for the offence may be imposed on any one of the persons in the same manner as
if the act was done by him alone. It may be difficult to procure direct evidence to prove the
intention of an individual, and in most cases it has to be inferred from the facts and relevant
circumstances of the case. The common intention may be through a pre-arranged plan, or it
may be generated just prior to the incident. Just as a combination of persons sharing the same
common object is one of the features of an unlawful assembly, so is the existence of a
Common intention denotes action in concert, and a prior meeting of minds—the acts may be
different, and may vary in their character, but they are all actuated by the same common
intention. However, prior concert in the sense of a distinct previous plan is not necessary to
be proved. As mentioned supra, the common intention to bring about a particular result may
well develop on the spot as between a number of persons. Thus, the question as to whether
there is any common intention or not depends upon the inference to be drawn from the
proven facts and circumstances of each case. The totality of the circumstances must be taken
into consideration in arriving at the conclusion whether the accused persons had the common
intention to commit the offence with which they could be convicted.
Analysis of the Instant case: The court observed: Looking to the facts and circumstances at
hand i.e. that the appellant herein had no specific motive to participate in the commission of
the offence, did not have any rivalry with the deceased or his family, and has not been shown
to be a friend, relative or hireling of the other two accused, we are of the considered opinion
that the prosecution has failed to prove any common intention on the appellant's part,
inasmuch as there is no hint of any motive or reason for him to have either participated in
pre-planning the murder of the deceased, or to develop the common intention to do so while
present at the spot of the offence. We are of the opinion that prosecution has failed to
discharge its burden to prove the case against the appellant beyond reasonable doubt.
Suraj Jagannath Jadhav v. State of Maharashtra, (2020) 2 SCC 693
2J: Justices Ashok Bhushan, M. R. Shah; Justice Shah delivered the judgement
Relevant Facts: The appellant put kerosene on the victim deceased and set her ablaze
throwing lighted matchstick on her person.
Issues:
1. Whether, in the facts and circumstances of the case, the case would fall under
Exception 4 to Section 300 IPC or Section 300 Fourthly and, therefore, whether
Section 302 IPC shall be attracted or the case may fall under Section 304 Part II IPC?
Relevant fact on which court placed reliance: It is required to be noted that, in the present
case, the appellant-accused poured kerosene on the deceased when she was trying to run out
of the house to save herself and was trying to open the latch of the door of the house, the
accused threw the matchstick on her person and set her ablaze. Nothing is on record that the
accused was in a highly inebriated stage. Even looking to the conversation which took place
between the deceased and the accused, so stated in the dying declaration given by the
deceased, it can safely be said that the accused was in very much conscious condition when
the incident took placeTherefore, the accused was fully conscious of the fact that if kerosene
is poured and matchstick is lit and put on the body, a person might die due to burns.
Therefore, the case would fall under Section 300 Fourthly, and Exception 4 to Section 300
IPC shall not be applicable.
- Intoxication, as such, is not a defence to a criminal charge. At times, it can be
considered to be a mitigating circumstance if the accused is not a habitual drinker,
otherwise, it has to be considered as an aggravating circumstance.
- the defence of drunkenness can be availed of only when intoxication produces such a
condition as the accused loses the requisite intention for the offence and onus of proof
about reason of intoxication, due to which the accused had become incapable of having
particular knowledge in forming the particular intention, is on the accused.
- Examining Section 85 IPC, the Court held that the evidence of drunkenness which
renders the accused incapable of forming the specific intent essential to constitute the
crime should be taken into account with the other facts proved in order to determine
whether or not he had the intention. The Court held that merely establishing that his
mind was affected by drink so that he more readily gave way to some violent passion,
does not rebut the presumption that a man intends the natural consequences of his acts.
The court held: that the death of the deceased was a culpable homicide amounting to
murder and Section 300 Fourthly shall be applicable and not Exception 4 to Section
300 IPC.
Awadhesh Kumar v. State of U.P., (2019) 10 SCC 323
3J: Justices Arun Mishra, M. R. Shah, S. Ravindra Bhat; Justice Shah delivered the
judgement
Relevant Facts:
When the mother of the complainant was making complaint, all the accused four persons
started quarrelling with his mother. In the meanwhile, the brother of the complainant Anoop
Kumar and his father Ram Lakhan also reached there. Then all the four accused persons were
asked by these persons to go away from there. Feeling annoyed by this conduct of the
complainant side, Vishnu Kumar, Rakesh Kumar and Sudhir alias Ramaudh exhorted
Ravinder to fire at the deceased, Ravinder, with his country-made pistol fired on the
complainant's mother.
Issues:
1. Was conviction under S. 304 by High Court on the grounds that (i) it was not a
planned crime; (ii) there was no prior intention; and (iii) it took place in the heat of
passion on the spur of the moment. justified?
Observations:
Intention is a matter of inference and when death is as a result of intentional firing, intention
to cause death is patent unless the case falls under any of the Exceptions. Exception 4 to
Section 300 IPC is attracted only when there is a fight or quarrel which requires mutual
provocation and blows by both sides in which the offender does not take undue advantage.
The court opined: “Considering the material/evidence on record discussed hereinabove, we
are of the firm opinion that the case falls under clause Fourthly to Section 300 IPC and,
therefore, the trial court was right in convicting the accused for the offence punishable under
Section 302 IPC, more particularly, when the accused fired from a country-made firearm on
the deceased from a close range. By the accused firing from a close range, the accused was
supposed to know that it is so imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death”.
Udiya v. State of M.P., (2019) 15 SCC 65
2J: Justices Indu Malhotra, Sanjiv Khanna; Justice Sanjiv Khanna delivered the judgement
Relevant Facts: PW 1 testified that while she was in her house, she heard her husband
raising alarm. Her husband was returning from work and was at a short distance from home.
She had seen the appellant assaulting Nakuda with a stone. Nakuda had also told her that the
appellant had assaulted him with a stone. PW 1 thereupon proceeded to the house of one
Laxman and took him to the place of incident.
Issues:
1. Whether the crime falls under exception 4 to section 300 IPC?
The court observed:
- We are inclined to accept the plea and contention that the present case would fall
under Exception 4 to Section 300 IPC.
- This is not a case of premeditated attack or violence actuated by a motive and
previous feud. It was a case of sudden fight in which the two brothers got involved
and in the grapple the appellant had picked up a stone and had hit the deceased
Nakuda.
- The appellant had not come armed to the spot with a weapon of offence. No witness
has testified as to any past enmity and acrimony between the two brothers.
- In fact, Jeevni (PW 1) had stated that earlier a civil suit had been filed by her deceased
husband and the appellant against two other persons and that there was no previous
enmity between the two brothers though they sometimes used to quarrel and thereafter
would become friendly.
- The appellant, who was present, was asked to come out and was thereupon confronted
and informed that Nakuda had expired and they would be filing a police report. Then,
the appellant on the pretext of easing himself had fled from the spot. This would
indicate that the appellant was not aware that he had killed his brother Nakuda. (Even
otherwise, there is hardly any evidence to suggest and show that the injuries caused
were intended, so as to indicate intention of causing bodily injury as is sufficient in
the ordinary course of nature to cause death.)
The court converted the conviction of the appellant from Section 302 to Part I of Section 304
IPC.
Sita Ram v. State (NCT of Delhi), (2019) 7 SCC 531
2J: Justices R. Banumathi, A S Bopanna; Justice Banumathi delivered the judgement
Relevant Facts:
Issues:
1. Reiteration, S. 300 IPC
10. In order to attract Exception 4 to Section 300 IPC the following ingredients have to be
established:
(i) The crime must be committed without premeditation;
(ii) It must be committed in a sudden fight in the heat of passion upon a sudden quarrel;
(iii) The offender should not have taken undue advantage;
(iv) The offender should not have acted in a cruel or unusual manner.
State of M.P. v. Kalicharan, (2019) 6 SCC 809
2J: Justices M. R. Shah, A. S. Bopanna; Justice Shah delivered the judgement
Relevant Facts: The fatal blow was caused by the said accused Ramavtar. The deceased
Kalyan sustained the injury on his head which was caused by the accused Ramavtar. The said
injury caused by the accused Ramavtar was on the vital part of the body i.e., head and proved
to be fatal as Kalyan subsequently died.
Issues:
1. Was High Court justified in altering the conviction of the accused Ramavtar from
Sections 302/149 to Section 304 Part II IPC?
No, the High court was not justified. As the Apex Court observed:
- Merely because the accused Ramavtar caused the injury on the head by the blunt side
of farsa, the High Court is not justified in altering the conviction to Section 304 Part II
IPC. As held by this Court in a catena of decisions, even in a case of a single blow,
but on the vital part of the body, the case may fall under Section 302 IPC and the
accused can be held guilty for the offence under Section 302 IPC.
- In the facts and circumstances of the case, more particularly that it was a case of free
fight, considering the fact that the weapon used by the accused Ramavtar was farsa
and he caused the injury on the vital part of the body i.e., head which proved to be
fatal, in the facts and circumstances of the case, we are of the opinion that the High
Court has committed a grave error in altering the conviction of the accused Ramavtar
from Sections 302/149 IPC to Section 304 Part II IPC.
- The impugned judgment and order passed by the High Court insofar as altering the
conviction of the accused Ramavtar from Sections 302/149 IPC to Section 304 Part II
IPC and sentencing him to undergo five years' RI for the offence under Section 304
Part II IPC was quashed and set aside.
Rambir v. State (NCT of Delhi), (2019) 6 SCC 122
2J: Justices R Banumathi, R. Subhash Reddy; Justice Banumathi delivered the judgement
Relevant Facts: The appellant accused killed her wife by strangulating her with Saria.
However, it was contended that as the act was not pre-planned and done in the spur of the
moment, it cannot be dealt under section 302.
Issues:
1. Whether the act of accused falls under exception 4 to section 300?
The Court observed:
A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients
are required:
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion; and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual
manner.
The judgement of high court: High Court found that two of the ingredients were absent so
as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court
has found that the act of picking up a “saria” and compressing forcefully the neck of his wife
by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of
passion. Further it is held that, the manner in which the appellant compressed his wife's neck
also depicts an act of extreme cruelty.
However, the apex court provided a different reasoning as observed:
From the evidence on record, it is clear that the incident occurred in a sudden fight and there
was no premeditation. Even the primary witness PW 7, the son of the accused and deceased,
has deposed that he had seen the appellant strangulating his mother, deceased, with the
“saria” when she had taken out some money from the appellant's wallet. It is not as if “saria”
was brought in a pre-planned way to murder the wife of the appellant. The iron rod (saria)
was picked up at the spur of the moment at the time of incident and used to compress the neck
forcefully. In that view of the matter, it is nothing but an act committed by the appellant in a
heat of passion. Further, the High Court has not given the benefit of Exception 4 to Section
300 IPC on the ground that the appellant compressed his wife's neck also depicts an act of
extreme cruelty. Having regard to the nature and manner of incident it cannot be said that the
act of the appellant was extremely cruel. Unless it is barbaric, torturous and brutal,
strangulation of the appellant's wife cannot be said to be an act of extreme cruelty for
denying the benefit of Exception 4 to Section 300 IPC.
18. Having regard to the evidence on record, we are of the view that the case of the appellant
falls within Exception 4 to Section 300 IPC. Conviction under Section 302 set aside.
Kalabai v. State of M.P., (2019) 20 SCC 502
2J: Justices Ashok Bhushan, K M Joseph; Justice Bhushan delivered the judgement
Relevant Facts: In a quarrel between deceased and her husband, the appellant (sister of
deceased) who lived on the ground floor intervened. The appellant threw the burning stove on
the deceased due to which clothes of the deceased caught fire and serious burn injuries were
caused. As a result, the victim died.
Issues:
1. Was conviction under S. 302 justified?
The Apex Court followed the law laid down in Hari Shankar [Hari Shankar v. State of
Rajasthan, (1998) 8 SCC 355 where appellant had also picked up a burning kerosene wick-
stove and threw it on the deceased. Kerosene from stove spilled over the clothes that caught
fire. The deceased in the said case also died as a result of the burns received by him. This
Court held that since the appellant had thrown a burning stove on the deceased, he would
have known that his act was likely to cause burns resulting in death. The court observed that
as the quarrel between the two took place all of a sudden and in the heat of the moment the
appellant had picked the stove and had thrown it towards the deceased, the appellant would
have known that his act was likely to cause burns resulting in death. In view of the facts and
circumstances of the case, he can be said to have committed an offence under Section 304
Part II IPC.
Following the above decision, the court stated that the present is also a case where in the facts
and circumstances of the case, the appellant can be said to have committed offence under
Section 304 Part II IPC. Conviction under S. 302 IPC set aside.
Nazir Malita v. State of W.B., (2020) 14 SCC 801
2J: Justices R Banumathi, S Abdul Nazeer; Justice Banumathi delivered the judgement
Relevant Facts: There was an altercation between the deceased Morshed Malita (alias
Morsed Malita) and the accused Hannan Mondal over the issue of the latter encroaching on a
path which prevented the bullock cart to move down the said road. On hearing the noise, both
the prosecution witnesses and also the accused parties assembled and there was a fight
between both the parties. In the said fight, the Appellant-Accused 6, 7 and 8 attacked the
deceased Morshed Malita with fala and ramda which are stated to be sharp-edged weapon
attached to the long stick. This led to the death of the deceased.
Issues:
1. Whether conviction under section 302 justified in the case?
The Court observed:
By perusal of the oral evidence and other materials on record, it is seen that the occurrence
happened in the evening in continuation of the altercation that occurred in the morning. At
the time of the occurrence, the deceased Morshed Malita had an altercation with accused
Hannan Mondal (since acquitted).
Considering the facts and circumstance of the case, in our view, there was no premeditation
or pre-plan to commit the murder of the deceased Morshed Malita. As rightly held by the trial
court as well as by the High Court that there was no premeditation and, therefore, they were
rightly convicted under Section 304 read with Section 34 IPC. The trial court as well as the
High Court, however, did not point out under which “Part” of Section 304 IPC the conviction
of the appellants is to be maintained.
As pointed out earlier, the appellants are said to have attacked the deceased Morshed Malita
with fala and ramda. The deceased Morshed Malita suffered cut injuries on the chest, bruise
on the lateral side of upper part of the left forearm, sharp cut penetrating back of chest and
left and right lungs were punctured.
Considering the facts and circumstances of the case and that there was no premeditation, the
conviction of the appellants under Section 304 read with Section 34 IPC is modified to
Section 304 Part II IPC.
Govind Singh v. State of Chhattisgarh, (2019) 17 SCC 812
2J: Justices R Banumathi, R. Subhash Reddy; Justice Banumathi delivered the judgement
Relevant Facts: Deceased Lalita was sitting in her room along with her friend Dev Kumari
(PW 1); while her mother Indra Kunwar (PW 2) was cooking food inside the house. At that
time, the appellant, father of the deceased came to her room and took out the bulb saying that
he wanted to connect the same in the courtyard. When deceased asked her father Govind
Singh not to do so, he disconnected the wire. When deceased started reconnecting the wire,
the appellant asked her not to do and abused her which resulted in wordy quarrel. Out of
anger, the appellant-accused threw burning chimney lamp on the deceased Lalita causing her
burn injuries. The deceased succumbed to her injuries.
Issues:
1. Was conviction under section 302 justified?
No, the court stated. Observing that the entire occurrence was in a spur of moment. There
was quarrel between the father and daughter as to where the bulb is to be put on. In the
sudden quarrel and in spur of the moment, the appellant threw the chimney lamp on his
daughter. The occurrence was sudden and there was no premeditation. The chimney lamp
was burning there which the appellant had picked up and thrown on the deceased. Since the
occurrence was in sudden quarrel and there was no premeditation, the act of the accused
would fall under Exception 4 to Section 300.
The conviction of the appellant-accused under Section 302 IPC was modified as the one
under Section 304 Part II IPC.
Nagji Odhavji Kumbhar v. State of Gujarat, (2019) 5 SCC 802
2J: Justices S K Kaul, Hemant Gupta; Justice Gupta delivered the judgement
Relevant Facts:
The appellants caused injuries to Bhura Govind and Lakha Arjan with spears, etc. and on
account of grievous injuries inflicted, both of them died on the spot. The cause of occurrence
was that the appellants were not giving right of way to the deceased.
Issues:
1. Conflict between conviction under Sections 304 and 302, right of private defence.
The court resorted to Jangir Singh v. State of Punjab, (2019) 13 SCC 813, to observe that in
order to succeed in such plea of private defence, it must be proved that the right of private
defence extended to cause death.
Facts taken in account: The deceased had multiple stab wounds on the chest. Since there are
multiple wounds, it cannot be said that the appellants have acted at the spur of the moment
without premeditation and that the appellants have not taken any advantage or acted in a cruel
or unusual manner. It is not a case of single injury which one can infer on account of sudden
fight. The court therefore, did not find any merit in the alternate argument that the appellants
are entitled to be convicted under Section 304 IPC as they have given multiple injuries on the
vital parts of the deceased.
Thus, the learned trial court as well as the High Court was perfectly justified in law in
convicting and sentencing the appellants for the offence under Section 302 IPC, the court
held.
State of Rajasthan v. Kanhaiya Lal, (2019) 5 SCC 639
2J: Justices L Nageswara Rao, M. R. Shah; Justice Rao delivered the judgement
Relevant Facts: Death as a result of injury by single blow.
Issues:
1. Whether the conversion of conviction by the high court from section 302 IPC to
section 304 (I) justified? Can injury by single blow considered a valid reason for
modifying the conviction from 302 to 304?
The Court answered in negative and observed:
In Arun Raj v. Union of India, (2010) 6 SCC 457, this Court observed and held that there is
no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is
observed and held by this Court in the aforesaid decision that nature of weapon used and vital
part of the body where blow was struck, prove beyond reasonable doubt the intention of the
accused to cause death of the deceased. It is further observed and held by this Court that once
these ingredients are proved, it is irrelevant whether there was a single blow struck or
multiple blows.
The reason for conversion that there was no repeated injury is flawed. The aforesaid can
hardly be a ground to convert the conviction from Section 302 to Section 304 Part I IPC. A
single blow on the vital part of the body like head and that too by deadly weapon axe and
used with force which proved to be fatal, was sufficient to hold that it was a case of murder
within the definition of Section 300 IPC.
On circumstances on the case the apex court observed: Merely because the altercation
might have taken place much earlier and not immediately prior to and/or at the time of
commission of the offence, it cannot be inferred that there was no intention on the part of the
accused to cause death of the deceased. Therefore, on the aforesaid ground, the High Court
has committed a grave error in converting/altering the conviction from Section 302 IPC to
The judgement of high court was set aside and the respondent was convicted under S. 302 to
undergo life imprisonment.
Nandlal v. State of Maharashtra, (2019) 5 SCC 224
2J: Justices R Banumathi, R Subhash Reddy; Justice Banumathi delivered the judgement
Relevant Facts: It is alleged that Gopichand and Dilip went at one side during one quarrel
but because of physical disability, Lakhichand was not quick enough to move. The appellant
attacked Lakhichand with gupti on his left armpit. Parshuram assaulted Lakhichand with
ballam; while Sanjay assaulted him with stick. Due to assault, Lakhichand sustained bleeding
injuries on his chest, left armpit and became unconscious there. Thereafter, the appellant and
the other accused persons ran away from the spot. Gopichand PW 1 along with his sister-in-
law Sakhubai PW 4 and others took Lakhichand to Government Hospital, Adawad where on
examination, he was declared dead. Law was set in motion.
Issues:
1. Whether the appellant-accused has made out a case for modification of his conviction
under Section 304 Part II IPC instead of Section 302 IPC?; Exception IV IPC.
In order to bring the case within Exception 4 to Section 300 IPC, the following conditions
enumerated therein must be satisfied: (i) The act must be committed without premeditation in
a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offenders
having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual
manner.
Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is
disproportionate to the offence and if the accused had taken undue advantage of the deceased,
the accused cannot be protected under Exception 4 to Section 300 IPC.
For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the
act was committed without premeditation, in a sudden fight in the heat of passion upon a
sudden quarrel without the offender having taken undue advantage and not having acted in a
cruel or unusual manner.
As noted above, the dispute between the appellant and Dilip was due to construction of a
common wall and non-sharing of expenses. The house of the appellant, being the next house
of Dilip, there was no time-gap between the first incident and the incident that followed, in
which the appellant inflicted gupti injury on the left armpit of the deceased. Both the
incidents cannot be said to be two different parts but are integral part of the same incident.
One of the conditions of Exception 4 is that the offender ought not to have taken “undue
advantage” or acted in a cruel or unusual manner. The appellant inflicted a single blow/injury
with gupti on the left armpit which pierced through the upper end of the left arm and then
entered the chest causing fracture of fourth rib and reached till the lung causing rupture of left
lung vasculature. Though, the gupti was a dangerous weapon, the appellant-accused caused a
single injury which pierced into the lung. Having sustained a stick-blow from Gopichand PW
1, in the sudden quarrel and in the heat of passion, the appellant inflicted the injury on
deceased Lakhichand. Considering the facts and circumstances of the case, in our view, the
case falls within Exception 4 to Section 300 IPC. The conviction of the appellant-accused
under Section 302 IPC is liable to be modified as Section 304 Part II IPC.
Dattatraya v. State of Maharashtra, (2020) 14 SCC 290
3J: Justices N V Ramana, Deepak Gupta, Indira Banerjee; Justice Banerjee delivered the
judgement
Relevant Facts: rape of five-year-old child, the child died, whether the accused can be
charged under offence of murder?
Issues:
1. S. 375, 300,
After reiterating the law on murder and culpable homicide the court stated,
“As a mature man, over fifty years of age, the appellant-accused should have known that the
rape of a five-year-old child by an adult was dangerous and could lead to such injuries, as
was in all probability likely to cause death”, the court observed.
The death of the deceased victim was not caused under any provocation, not to speak of
sudden provocation. No such defence has been taken by the appellant-accused. Nor is it
anybody's case that the death was caused in legitimate exercise in good faith of any right of
the appellant-accused, whether of private defence or otherwise. The death has been caused
without any provocation.
The conviction under section 300 justified.
Sudhir Kumar v. State of Haryana, (2019) 14 SCC 387
2J: Justices N V Ramana, M M Shantanagoudar; Justice Ramana delivered the judgement.
Relevant Facts: An altercation took place between the complainant's mother, Ramrati and
his aunt, Sarli at about 5.00 p.m. on 13-3-2008. On the same day, the accused started pelting
bricks and stones upon the house of the complainant showing solidarity with Sarli. However,
the complainant and other family members remained inside their house out of fear. On the
next day i.e., 14-3-2008, complainant's mother Ramrati went to fetch water at about 2.00
p.m., and at that time, accused 2 to 9 were sitting there and they started threatening Ramrati
with dire consequences. Subsequently, accused 1 to 9 carrying deadly weapons like, jellies
and iron rods approached the shop of the complainant's brother, Satish and threatened him
also. Consequently, Satish fled from the scene. Thereafter, all the accused came to the house
of the complainant and attacked the complainant's father, Balwan Singh. The complainant
and his cousin were also injured in this altercation.
Issues:
1. Whether the offence of murder fall under one of the exceptions to section 300?
Observations:
Having regard to the weapons used, the situs of the injuries and the force with which the
deceased was assaulted by the accused shows clear intention on the part of the said accused to
commit murder.
The judgment of the High Court modifying the conviction of Respondent 2 under Section 304
Part I is liable to be set aside, the court observed. Accordingly, the appeal questioning the
conviction of Surender alias Monu for the offence under Section 304 Part I is allowed. The
accused Surender alias Monu is convicted for the offence under Section 302 IPC and is
sentenced to undergo imprisonment for life and also to pay a fine of Rs 2,00,000. If
deposited, the amount is to be made over to the legal representatives of the deceased as
compensation. If the fine is not paid, the accused Surender alias Monu will undergo further
rigorous imprisonment for three years.
Bikash Bora v. State of Assam, (2019) 4 SCC 280
2J: Justices A M Khanwilkar, K M Joseph; Justice Khanwilkar delivered the judgement
Relevant Facts: only two fatal injuries have been noticed during the post-mortem of the dead
body of deceased (Jugeswar Kurmi)
Issues:
1. whether the offence of Section 302 IPC can be converted to Section 304 Part II IPC?
2. Mere presence of appellant can make them liable under s. 34?
Issue 1: The High Court has found that the deceased (Jugeswar Kurmi) was not armed and
could not have offered any resistance or challenged the chowkidars armed with weapon.
Concededly, though the accused perceived Jugeswar Kurmi as a thief and had chased him but
that could be no justification to inflict vigorous stick-blows which could cause fatal injuries
as noticed in the post-mortem report and proved by PW 8. Therefore, we are not inclined to
disturb the conclusion reached by the High Court that it was a case of causing murder of
Jugeswar Kurmi (deceased), albeit by accused Dipankar Bora, an offence liable to be
punished under Section 302 IPC simpliciter.
Issue 2: Accordingly, we conclude that the mere presence of the three appellants, namely,
Bikash Bora, Atul Bora and Haren Rautia, at the scene of crime, cannot be the basis to record
a finding of guilt against them by applying Section 34 IPC. The proved chain of
circumstances is not enough to establish their complicity in causing the two fatal injuries to
the deceased (Jugeswar Kurmi) to which he eventually succumbed. The three appellants,
namely, Bikash Bora, Atul Bora and Haren Rautia are acquitted of the offence under Sections
302/34 IPC by giving them benefit of doubt.
Madan Mohan Mahto v. State of Jharkhand, (2019) 4 SCC 142
2J: Justices A M Sapre, Dinesh Maheshwari; Justice Sapre delivered the judgement
Relevant Facts: Four persons, namely, Madan Mohan Mahto, Jagmohan Mahto, Charka
Mahto and Bihari Mahto were prosecuted and eventually convicted for commission of
offence of murder of one Jitu Mahto under Section 302 read with Section 34 of the Penal
Code, 1860 (hereinafter referred to as “IPC”) by the Sessions Judge and were accordingly
awarded life sentence. All the four accused felt aggrieved and filed an appeal before the High
Court. By the impugned order, the High Court dismissed the appeal and upheld the order of
the trial court, which has given rise to filing of the four criminal appeals by four accused in
this Court.
Issues:
1. Ss. 302, 34 IPC
We are unable to notice any kind of infirmity, illegality or perversity in the approach of the
two courts below while holding that the prosecution proved the case beyond reasonable doubt
against all the accused persons under Sections 302/34 IPC. A case of common intention
under Section 34 IPC stood fully made out against all the accused persons because it was
proved that all the accused came together armed with lethal weapons in their hands with an
intention to attack the persons working in the field. Three persons, named above, including
PWs 1 and 2 could manage to flee from the field but Jitu Mahto was not able to flee and was
caught hold of by the accused persons. He was, therefore, brutally assaulted by all the
accused persons with the aid of tangi and stone on his hand and head due to which he died on
the spot.
State of U.P. v. Faquirey, (2019) 5 SCC 605
2J: Justices L Nageswara Rao, S K Kaul; Justice Rao delivered the judgement
Relevant Facts: There was a dispute between PW1’s nephew Nokhey and the respondent.
During the course of the panchayat, Rakesh, son of the complainant arrived at 3.30 p.m. from
his agricultural field. The respondent saw Rakesh and stated that he will kill him prior to the
settlement of the dispute before the panchayat as Rakesh had an evil eye on his wife and was
visiting his house. Santosh, the younger brother of the respondent also arrived at the spot and
exhorted the respondent to kill Rakesh. When Rakesh tried to run to save himself, the
respondent took out a pistol and fired at Rakesh. Rakesh succumbed to the firearm injury.
The inquest was conducted on the next day i.e., 23-3-2000 and the dead body of the deceased
Rakesh was sent for post-mortem examination. The high court converted the conviction by
trial court under s 300 to s 304.
Issues:
1. A
The High Court was of the opinion that this resulted in grave and sudden provocation.
Observing so, the High Court converted the conviction of the respondent from Section 302
IPC to Section 304 Part I IPC. The respondent was sentenced to suffer rigorous imprisonment
for 10 years.
After examining the matter carefully, we are of the opinion that the judgment of the High
Court is liable to be set aside and the judgment of the trial court to be restored. There is no
dispute that the shot fired from the pistol by the respondent was due to the grudge that he had
against the deceased. Immediately after the deceased arrived at the place of incident, the
respondent's attention was diverted from the dispute that was being settled in the panchayat.
He turned to the deceased and shot him in view of his past conduct relating to the visit of the
deceased to his house to become close with his wife.
According to Exception I to Section 300 IPC, culpable homicide is not murder if the offender
causes the death of the person who gave the provocation, whilst deprived of the power of
self-control by grave and sudden provocation. It would be relevant to refer to the first proviso
to Exception I which provides that the provocation should be one which is not sought or
voluntarily provoked by the offender as an excuse for killing or doing harm to any person. No
overt act is alleged against the deceased by which it can be stated that the respondent was
provoked. From the proved facts of this case it appears that the provocation was voluntary on
the part of the offender. Such provocation cannot come to the rescue of the respondent to
claim that he is not liable to be convicted under Section 302 IPC.
Fo the aforementioned reasons, the judgment of the High Court is set aside and the judgment
of the trial court convicting the respondent under Section 302 IPC and sentencing him to life
imprisonment is restored.
Mala Singh v. State of Haryana, (2019) 5 SCC 127
2J: Justices A M Sapre, R Subhash Reddy; Justice Sapre delivered the judgement
Relevant Facts:
Issues:
1. Regarding altering of the charge from Section 149 to Section 34 IPC read with
Section 302 IPC
It is true that there is substantial difference between the two sections but as observed by Lord
Sumner in [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49], they also to
some extent overlap and it is a question to be determined on the facts of each case whether
the charge under Section 149 overlaps the ground covered by Section 34. If the common
object which is the subject-matter of the charge under Section 149 does not necessarily
involve a common intention, then the substitution of Section 34 for Section 149 might result
in prejudice to the accused and ought not therefore to be permitted. But if the facts to be
proved and the evidence to be adduced with reference to the charge under Section 149 would
be the same if the charge were under Section 34, then the failure to charge the accused under
Section 34 could not result in any prejudice and in such cases the substitution of Section 34
for Section 149 must be held to be a formal matter.
In law there could be no recourse to Section 34 when the charge is only under Section 149.
Whether such recourse can be had or not must depend on the facts of each case. This is in
accord with the view taken by this Court in Lachhman Singh v. State [Lachhman
Singh v. State, AIR 1952 SC 167] , where the substitution of Section 34 for Section 149 was
upheld on the ground that the facts were such
‘that the accused could have been charged alternatively either under Section 302 read with
Section 149, or under Section 302 read with Section 34’ (AIR p. 170, para 13).”
In the light of the aforementioned principle of law stated by this Court which is now fairly
well settled, we have to now examine the evidence of this case with a view to find out as to
whether the High Court was justified in convicting Appellants 2 and 3 herein for commission
of offence of murder with the aid of Section 34 IPC which was initially not the charge framed
against the appellants herein by the Sessions Judge.
45. Having perused the entire evidence and legal position governing the issues arising in the
case, we have formed an opinion that the appeal filed by Appellants 2 and 3 deserves to be
allowed and the conviction of Appellants 2 and 3 deserves to be altered to Section 324 IPC.
This we say for the following reasons:
 First, once eight co-accused were acquitted by the High Court under Sections
302/149 IPC by giving them the benefit of doubt and their acquittal attained
finality, the charge under Section 149 IPC collapsed against the three
appellants also because there could be no unlawful assembly consisting of less
than five accused persons. In other words, the appellants (3 in number) could
not be then charged with the aid of Section 149 IPC for want of numbers and
were, therefore, rightly not proceeded with under Section 149 IPC.
 Second, keeping in view the law laid down by this Court in the cases referred
to supra, the High Court though had the jurisdiction to alter the charge from
Section 149 IPC to Section 34 IPC qua the three appellants, yet, in our view,
in the absence of any evidence of common intention qua the three appellants
so as to bring their case within the net of Section 34 IPC, their conviction
under Sections 302/34 IPC is not legally sustainable.
In other words, in our view, the prosecution failed to adduce any evidence against the three
appellants to prove their common intention to murder Mahendro Bai. Even the High Court
while altering the charge from Section 149 IPC to Section 34 IPC did not refer to any
evidence nor gave any reasons as to on what basis these three appellants could still be
proceeded with under Section 34 IPC notwithstanding the acquittal of remaining eight co-
accused.
Section 34 IPC does not, by itself, create any offence whereas it has been held that Section
149 IPC does. As mentioned above, the prosecution pressed their case since inception and
accordingly adduced evidence against all the accused alleging that all were the members of
unlawful assembly under Section 149 IPC and not beyond it. The Sessions Court, therefore,
rightly framed a charge to that effect. If the prosecution was successful in proving this charge
in the Sessions Court against all the accused persons, the prosecution failed in so proving in
the High Court.
Subhash Gangadhar Jadhav v. State of Maharashtra, (2019) 16 SCC
728
Relevant Facts: There was an exchange of hot words between the appellant-accused and the
deceased. During which time, the appellant-accused inflicted injuries on the deceased Kanhu
Rao with wooden rod of the axe. The appellant inflicted four to five injuries on the person of
the deceased due to which the deceased Kanhu Rao died on the spot. It was submitted that
there was no premeditation or intention of committing the murder of the deceased Kanhu Rao
by the appellant.
Issues:
1. Murder, Pre-meditation.
The court observed: Considering the facts and circumstances of the case and also that there
was no premeditation of the appellant-accused in inflicting injuries on the deceased Kanhu
Rao, the conviction of the appellant-accused under Section 302 IPC is modified to Section
304 Part I IPC and the sentence awarded to the appellant-accused is reduced to the period
already undergone by him.
Nitinchandra Somnath Raval v. State of Gujarat, (2019) 14 SCC 676
3J: Justices A K Sikri, S Abdul Nazeer, Ashok Bhushan
Relevant Facts: In 2001 Gujarat earthquake, out of the four towers which were constructed
by one of the parties, one tower collapsed, as a result whereof 98 innocent persons lost their
lives. The appellant was also a sufferer as his two adult sons, daughter-in-law and grandson,
who were in the building at that time, also died. As per the appellant he survived as he was
not in the building at that time. It was alleged that the buildings collapsed due to sub-standard
construction.
Issues:
1. Whether a case under S. 304 was made out?
It becomes very relevant and material fact that non-framing of charge under Section 304 IPC
against co-accused had attained finality and even on examination of the case independently
we are of the view that the case under Section 304 IPC is not made out.
The appellant does not seek to bring the case in the first part of S. 304. His contention was
that knowledge can be attributed to the accused persons that the construction in question
which was substandard in nature is likely to cause death when earthquake of this magnitude
occurs as that would result in the collapse of the building.
It is difficult to accept this contention. In the first place, as noted above, an earthquake at the
Richter scale of 7.7 had hit the city of Ahmedabad. This was of a very high intensity. Not
only this the earthquake engulfed almost the entire State of Gujarat which was a severe
calamity. Secondly, out of four towers erected by the accused persons only one tower had
collapsed. Thirdly, it is not only this tower of the building in question but almost 12 such
buildings collapsed in Ahmedabad. In all other cases, no charge under Section 304 has been
framed, as noted above.
In view of the aforesaid categorical pronouncements, it is difficult to accept the submissions
of the appellant that charge under Section 304 is made out. We can understand the anguish
and agony of the appellant who lost his family members because of the unfortunate
catastrophe. But when it comes to culpability, the accused can be tried only for such offence
which can be made out in law.

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