The Hon’ble Supreme Court While Deciding The Difference Between Culpable Homicide And Murder: “Even Fight Occurred In The Heat Of The Moment And Suddenly, We Should Not Overlook The Fact That The Appellants Inflicted As Many As Nine Blows With A Dangerous Weapon On The Deceased Who Was Unarmed And Was Helpless”

Case title:
BALU SUDAM KHALDE AND ANOTHER Vs THE STATE OF MAHARASHTRA

Date of Order:
29th of March, 2023

Bench:
Hon’ble Justice J.B. PARDIWALA,Hon’ble Justice SUDHANSHU DHULIA

Parties:
Appellant: BALU SUDAM KHALDE
Respondent: THE STATE OF MAHARASHTRA

SUBJECT

This appeal by special leave is at the instance of two convict persons and is directed against the judgment passed by the High Court of Judicature at Bombay in Criminal Appeal No. 637 of 2003 by which the High Court dismissed the criminal appeal referred to above, and thereby affirmed the order of conviction and the consequence sentence passed by the learned Additional Sessions Judge, Pune dated 12.03.2003 in Sessions Case No. 323 of 2001, by convicting both the appellants herein for the offense under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and sentencing them to suffer life imprisonment and a fine of Rs. 1000/- each with the stipulation that in 2 default of payment of the fine they would undergo rigorous imprisonment for further six months.

The appellants herein are original accused Nos. 1 and 3. The original accused No. 2 and 4 were acquitted by the Trial Court.

IMPORTANT PROVISIONS

Section 300 of the Indian Penal Code :

“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,—

Fourthly.—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.

OVERVIEW

The first informant, Asgar Shaikh, was talking to his friend, Abbas Baig (who later died), when the second appellant and a few others walked by.

Abbas confronted the second appellant, leading to an argument. Later, the second appellant returned with the first appellant and two others, and a fight broke out.

As a result, Asgar Shaikh was hit on the head with a sickle and sword by the first appellant, causing bleeding. Abbas was also severely attacked with a sickle and sword and ultimately died from his injuries.

The prosecution alleges that the appellants had dangerous weapons during the attack.

Following the FIR, All Four accused were arrested by the police.

The appellants, in this case, were found guilty of the crime punishable under Section 302 read with Section 34 IPC at the conclusion of the trial, and the learned Trial Judge punished both as previously mentioned. It was mandated that the initial defendants Nos. 2 and 4 be absolved of all allegations.

ISSUES RAISED

Whether the appellants should be acquitted of all charges or have their conviction changed to Section 304 Part 1 of the IPC by giving the benefit of Exception 4 to Section 300 of the IPC

ARGUMENTS ADVANCED BY THE APPELLANT

The appellants' counsel argued that the High Court made a serious error in dismissing their appeal against the Trial Court's judgment and order of conviction. The eyewitnesses' evidence was unreliable, and the first informant's presence was doubtful. The discovery of weapons could not be relied on, and even if the prosecution's case was true, it would only be culpable homicide not amounting to murder. The appellants should be acquitted of all charges or have their conviction changed to Section 304 Part 1 of the IPC by giving the benefit of Exception 4 to Section 300 of the IPC

ARGUMENTS ADVANCED BY THE RESPONDENT

The State of Maharashtra's counsel, Mr. Abhikalp Pratap Singh, strongly opposed the appeal and argued that the High Court did not make any legal errors when affirming the conviction and sentence passed by the Trial Court. He argued that there is no reason to doubt the testimony of the eyewitnesses who saw the crime and that there was no motive for them to falsely implicate the appellants. He also argued that the injuries inflicted on the deceased were severe, indicating the appellants acted cruelly. Finally, he argued that the discovery of the weapons supports the prosecution's case and should be considered under Section 8 of the Act 1872. In conclusion, he requested the dismissal of the appeal due to the lack of merit

JUDGEMENT ANALYSIS

• It's difficult to understand visual evidence. The method for appreciating the ocular evidence is not rigid or predetermined. In numerous cases, including BharwadaBhoginbhaiHirjibhai v. State of Gujarat 1983 Cri LJ 1096: (AIR 1983 SC 753), Leela Ram v. State of Haryana AIR 1995 SC 3717, and Tahsildar Singh v. State of UP (AIR 1959 SC 1012), the judicially developed principles for appreciating ocular evidence in a criminal case have been cited.
• The legal principles for appreciating the evidence of an injured eye-witness are as follows:

1. If there are no material contradictions in the injured eye-witness's deposition, their presence at the time and place of the occurrence cannot be doubted.
2. Unless proven otherwise, it should be believed that an injured witness would not let the real culprits escape and falsely implicate the accused.
3. The testimony of an injured witness carries more weight, and unless there are compelling reasons, their statements should not be dismissed easily.
4. Minor contradictions or embellishments in natural conduct should not cast doubt on the evidence of an injured witness.
5. Any exaggeration or immaterial embellishments should be discarded, but not the entire testimony.
6. Discrepancies due to loss of memory over time should be disregarded, and the broad substratum of the prosecution's version should be considered

• There is no reasonable reason for us to doubt the ocular version as described by the three eyewitnesses because the oral testimony of all three witnesses is consistent. Both the Trial Court and the High Court carefully considered the oral testimony of the three eyewitnesses mentioned above and came to the same conclusion that they were reliable witnesses.
• The High Court reviewed arguments made by the Appellants in a case regarding the death of Abbas Baig. The Appellants claimed that the eyewitnesses' evidence could not be trusted, that there was no immediate disclosure of the accused persons' names, and that the main vital injury was caused by Appellant No.2 using a sword, not by Appellant No.1. The court found that there was a complaint lodged immediately after Abbas was brought to the police station and that all of Abbas's injuries contributed to his death. The court also noted that there was no medical certificate regarding injuries sustained by the eyewitnesses and that Appellant No.1 was held responsible for the death of Abbas.
• The court in a certain case considered the evidence and a suggestion made to a witness, and based on the witness's reply, concluded that the accused was present. The witness stated that he was taken to a different place, blindfolded on a bicycle, and identified the appellant as the one who took him from the incident's location. During cross-examination, the witness stated that the accused did not blindfold him or assault him. However, the court considered this denial suggestive of the accused's presence in the episode.
• The accused Tarun Bora may have been present throughout the entire occurrence, according to this section of the cross-examination. This will make it quite evident that the accused is present, as he has admitted. The accused neither participated in the witness's eyes being blindfolded nor assaulted him, which is the only denial.
• Court while dealing with an appeal against the judgment of the HC sustaining the order of the Sessions Judge whereby the appellant and three other people were convicted under Section 302 r/w Section 34 of the IPC in Rakesh Kumar alias Babli v. State of Haryana, reported in (1987) 2 SCC 34. The court observed that during PW 4's cross-examination, a remark was made regarding the color of the clothing one of the accused individuals was wearing at the time of the event. Court came to the conclusion that the presence of the accused, Dharam Vir, was established on the scene at the time of the incident after taking into account the nature of the defense's motion and the reply.
• In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Another reported in (1976) 4 SCC 382 discusses the distinction between murder and culpable homicide not amounting to murder, as laid down by the Indian Penal Code. It explains that culpable homicide is the generic term, and murder is a specific type of culpable homicide. The Penal Code recognizes three degrees of culpable homicide for the purpose of fixing punishment, with murder being the highest form of culpable homicide. The courts have been confused by the academic distinction between murder and culpable homicide that does not amount to murder, thus the best strategy for interpreting and applying these rules is to concentrate on the keywords employed in the various Sections 299 and 300 clauses.
• We find it exceedingly challenging to accept the experienced counsel representing the appellant's claim that the case would qualify for the benefit provided by Exception 4 to Section 300 of the IPC and be extended to the accused. Even if we assume that the battle was sudden and that the occurrence happened in the heat of the moment, we shouldn't ignore the fact that the appellants in this case attacked the deceased, who was defenseless and unarmed, with up to nine blows from a lethal weapon. It is not necessary that the criminal intended to cause death for a case to fall under clause (3) of Section 300 of the IPC as long as the death results from deliberate bodily damage or injuries sufficient to induce death in the regular course of nature.
• The case of Rajwant Singh v. State of Kerala, which was published in AIR 1966 SC 1874, is a good example of this point.
• The following judgment has been approached at the contention in a three-fold manner by the Hon’ble Supreme Court of India which are:

A. APPRECIATION OF ORAL EVIDENCE,

B. PRINCIPLE OF RES GESTAE (embodied in Section 6 of the Act 1872: “ Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place.”

C. EXCEPTION 4 TO SECTION 300 OF THE IPC.

CONCLUSION

• According to the records, both of the appellants, in this case, were mandated to post bail awaiting the conclusion of the appeal. By order dated 01.10.2010, appellant No. 2 was directed to be freed on bail, and by order dated 04.03.2013, appellant No. 1 in this case was ordered to be released on bail.
• The bail bonds that they provided in Sessions Case No. 323 of 2001 to the Additional Sessions Judge, Pune, were revoked. Within two weeks of today, both appellants are required to appear in person before the trial court.
• Even the fight occurred in the heat of the moment and suddenly, we should not overlook the fact that the appellants inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and helpless.