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The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 175 OF 2015
(ARISING OUT OF SLP(Crl.) No.8715/2014)

Balu S/o Onkar Pund & Others Appellant(s)
VERSUS
The State of Maharashtra Respondent(s)

WITH

CRIMINAL APPEAL Nos.166-167 OF 2015
(ARISING OUT OF SLP(Crl.) Nos.10109-10110/2014)
AND
CRIMINAL APPEAL Nos.164-165 OF 2015
(ARISING OUT OF SLP(Crl.) Nos.9524-9525/2014)

J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals are filed by the accused persons against the judgment
and order dated 03.02.2014 passed by the High Court of Judicature at
Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215 and 225 of 2011
which arise out of judgment/order dated 11.04.2011 passed by the Sessions
Judge, Parbhani in Sessions Trial No.80 of 2008.
2. Accused Nos. 5, 8, 9 & 10 have filed appeal @ SLP(Crl.) No. 8715 of
2014 whereas appeals @ SLP(Crl.) Nos.10109-10110/2014 are filed by
accused Nos.1 and 4 and appeals @ SLP(Crl.) Nos. 9524-9525/2014 are filed
by accused Nos. 2, 3 and 6.
3. By impugned judgment, the High Court confirmed the conviction and
sentences awarded to the appellants by the learned trial Judge. Suffice it
to state here that the appellants, apart from other offences were convicted
under Section 302 read with Section 149 of the IPC and sentenced to suffer
life imprisonment and to pay fine of Rs.10,000/- each, in default of
payment of fine, to undergo further six months rigorous imprisonment. The
sentences imposed in respect of other offences are of below 7 years and all
the sentences have been directed to run concurrently.
4. The question, regard being had to the submissions advanced by the
learned counsel for the appellants, is whether the learned trial Judge as
well as the High Court was justified in convicting the appellants under
Section 302 read with Section 149 IPC considering the genesis of occurrence
and the facts in entirety or they should have been convicted under Section
304 Part-I, IPC.
5. In order to appreciate the issue involved in these appeals, it is
necessary to state the relevant facts in brief.
6. Apparao Rajaram Pund (A-1) and Madhavrao Rangnathrao Range (PW- 3),
both resident of village Itlapur in District Parbhani, were good friends.
Both were agriculturists. Savitribai-the deceased was the wife of Madhavrao
Range. Around 25-30 years back, Madhavarao had purchased two kathas of
land from Apparao for his cattle shed in the same village and he was also
placed in its possession. However, no sale deed was executed between them
yet Madhavrao continued to remain in possession of cattle shed all through.
7. In course of time, both entered in politics and formed their
respective panels to contest the elections for the post of Sarpanch of the
village. In the election, panel led by Madhavrao Range won whereas panel
led by Apparao Pund lost. Due to this event, the relations between them
were not as cordial as they used to be in the past. Thereafter Apparao
started pressurizing Madhavrao Range to vacate the land and hand over the
possession of cattle shed else he was threatened to face the dire
consequences.
8. On 15.01.2008, the appellants around 7.30 to 8.00 A.M. armed with
weapons barged in the cattle shed and started removing the iron sheets
fixed on the roof. Madhavrao requested the appellants not to remove the
sheets. Since the appellants did not listen to Madhavrao and continued in
their operation in removing the sheets, Madhavrao resisted and made attempt
to stop them. At that time, Savitribai and Madhavrao’s son – Udhav (PW
-5), who were also present on the spot, intervened and resisted the
appellants from removing the sheets. This led to scuffle between Apparao (
A-1), Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3). Accused Nos. 1, 3
and 4 beat Madhavrao with fist blows and leg kicks and threw him out of
cattle shed. Apparao(A-1), who was having bottle containing kerosene,
poured the entire kerosene on cattle shed and Sachin ( A-4) set the cattle
shed on fire. Savitribai, who was resisting the appellants, caught in
contact of fire and received severe burn injuries. On noticing this,
Madhavrao tried to enter in cattle shed to save his wife-Savitribai. Gopal
(A-2) then inflicted an axe blow on Madhavrao’s head due to which he
sustained bleeding injury. When Madhavrao cried for help, Navnath and other
persons reached there and tried to extinguish the fire. Thereafter they
wrapped Savitribai in a piece of cloth and took her to the civil hospital
around 10 A.M.
9. In the meantime, Mohammad Bashir Sheikh Umar (PW-2)- Inspector on
duty to the Nanal Peth Police Station, got an information that a lady with
burn injuries was admitted to the Hospital. Therefore, he rushed to the
hospital to record her statement. After getting certification from the
doctors that Savitribai was in a fit condition to give her statement, PW-2
recorded her statement (Ex-45). In the meantime, Kishore Achyut Deshmukh
(PW-1), In-charge Tahsildar of the area also reached to the hospital and
recorded the statement of Savitribai (Ex-P-42).
10. Annasahab Gholap – Assistant Police Inspector (PW-16) then registered
the crime being Crime No. 6 of 2008 and started investigation. On the same
day, five accused were arrested, panchnama (Ex-P-58) was prepared and
several articles were recovered from the spot. On 16.01.2008 at 6.15 a.m.,
Savitribai succumbed to her injuries while in the Hospital. This led to
arrest of some other accused persons and also led to registration of case
of offence punishable under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) along with other offences punishable
under Sections 147, 148, 323, 324, 436, 440, 448, 506 all read with
Section 149 IPC against the appellants and other accused persons. The case
was then committed to Sessions for trial. The accused abjured their guilt
and claimed trial. The prosecution examined 16 witnesses. The statements of
the accused persons were recorded under Section 313 of the Code of Criminal
Procedure, 1973.
11. The Sessions judge convicted the appellants-accused and imposed
punishment to each appellant as specified above. Challenging the said
order, the appellants filed appeals in the High Court against their
conviction. The High Court, by impugned judgment, dismissed their appeals
and confirmed the conviction and sentence awarded by the trial Court to
each of the appellants. Against the said order, the appellants have
preferred these appeals by way of special leave before this Court.
12. While assailing the legality and correctness of the impugned order,
Mr. Sudhanshu S. Choudhari, learned Counsel for the appellants has argued
only one point. According to him, taking the prosecution case on its face
value, it was not a case of murder of Savitribai so as to enable the Courts
to convict the appellants under Section 302 IPC but it was a case falling
under Section 304 Part-I IPC. Learned counsel pointed out that there was
neither any intention on the part of any of the appellants to commit the
murder of Savitribai nor the appellants had visited the spot with any such
intention. Learned Counsel further pointed out that the only intention of
the appellants was to take possession of the cattle shed and it was in
process of taking forcible possession, the sudden fight ensued between the
two groups as also cattle shed caught fire causing burn injuries to
Savitribai, which unfortunately resulted in her death. It was also pointed
out that if the appellants had come to the spot with an intention to
eliminate Savitribai, they or any member of their group would have in the
first instance targeted Savitribai, who was present on the spot with her
husband (PW-3) and inflicted injury. It was not done. According to learned
Counsel, her death was as a result of burn injuries because she was inside
the shed, which caught fire. Therefore, learned Counsel urged that this
Court should alter the sentence to that of the one punishable under Section
304 Part-I IPC instead of under Section 302 IPC because it was not a case
of murder but it was a case of culpable homicide not amounting to murder.
13. Per contra, learned Counsel for the respondent supported the impugned
order and urged that two courts have rightly held the appellants guilty for
committing murder of Savitribai and hence the appeals merit dismissal
calling no interference.
14. Having heard the learned Counsel for the parties and on perusal of
the record of the case, we find force in the submission of the learned
Counsel for the appellants.
15. Before we examine the factual matrix of the case in hand, it is
apposite to take note of the law laid down by this Court on the question as
to when culpable homicide is a murder under Section 300 “thirdly” and what
are the elements which the prosecution should establish. This Court in
Virsa Singh v. State of Punjab, 1958 SCR 1495, examined this issue in
detail.
16. The learned Judge Vivian Bose in his distinctive style of writing and
speaking for the Court succinctly stated as under:

“13. In considering whether the intention was to inflict the injury found
to have been inflicted, the enquiry necessarily proceeds on broad lines as,
for example, whether there was an intention to strike at a vital or a
dangerous spot, and whether with sufficient force to cause the kind of
injury found to have been inflicted. It is, of course, not necessary to
enquire into every last detail as, for instance, whether the prisoner
intended to have the bowels fall out, or whether he intended to penetrate
the liver or the kidneys or the heart. Otherwise, a man who has no
knowledge of anatomy could never be convicted, for, if he does not know
that there is a heart or a kidney or bowels, he cannot be said to have
intended to injure them. Of course, that is not the kind of enquiry. It is
broad-based and simple and based on commonsense: the kind of enquiry that
“twelve good men and true” could readily appreciate and understand.
14. To put it shortly, the prosecution must prove the following facts
before it can bring a case under Section 300 “thirdly”;
15. First, it must establish, quite objectively, that a bodily injury is
present;
16. Secondly, the nature of the injury must be proved; These are purely
objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was intended.
18. Once these three elements are proved to be present, the enquiry
proceeds further and,
19. Fourthly, it must be proved that the injury of the type just described
made up of the three elements set out above is sufficient to cause death in
the ordinary course of nature. This part of the enquiry is purely objective
and inferential and has nothing to do with the intention of the offender.
20. Once these four elements are established by the prosecution (and, of
course, the burden is on the prosecution throughout) the offence is murder
under Section 300 “thirdly”. It does not matter that there was no intention
to cause death. It does not matter that there was no intention even to
cause an injury of a kind that is sufficient to cause death in the ordinary
course of nature (not that there is any real distinction between the two).
It does not even matter that there is no knowledge that an act of that kind
will be likely to cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest of the enquiry is
purely objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of
nature to cause death. No one has a licence to run around inflicting
injuries that are sufficient to cause death in the ordinary course of
nature and claim that they are not guilty of murder. If they inflict
injuries of that kind, they must face the consequences; and they can only
escape if it can be shown, or reasonably deduced, that the injury was
accidental or otherwise unintentional.”
17. Relying on the aforesaid principle of law, recently this Court in
Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh (2006)11
SCC 444, again examined the issue as to what relevant factors should be
kept in consideration while deciding the question as to whether case in
hand falls under Section 302 or 304 Part-I or Part-II. Justice Raveendran
speaking for the Court held in para 29 as under:
“29. Therefore, the court should proceed to decide the pivotal question of
intention, with care and caution, as that will decide whether the case
falls under Section 302 or 304 Part I or 304 Part II. Many petty or
insignificant matters – plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an objectionable glance, may
lead to altercations and group clashes culminating in deaths. Usual motives
like revenge, greed, jealousy or suspicion may be totally absent in such
cases. There may be no intention. There may be no premeditation. In fact,
there may not even be criminality. At the other end of the spectrum, there
may be cases of murder where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there was no intention to
cause death. It is for the courts to ensure that the cases of murder
punishable under Section 302, are not [pic]converted into offences
punishable under Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable under Section 302.
The intention to cause death can be gathered generally from a combination
of a few or several of the following, among other, circumstances: (i)
nature of the weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden quarrel or sudden
fight or free for all fight; (vi) whether the incident occurs by chance or
whether there was any premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii) whether there was any
grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single blow or several
blows. The above list of circumstances is, of course, not exhaustive and
there may be several other special circumstances with reference to
individual cases which may throw light on the question of intention. Be
that as it may.”

18. Applying the aforesaid principle of law to the facts of the case in
hand and keeping the same in consideration when we examine the evidence of
the prosecution, we find that this is a case where the appellants should
have been convicted for the offence punishable under Section 304 Part-I
instead of Section 302 IPC.
19. It is for the reason that firstly, neither there was any motive and
nor any intention on the part of any of the appellants to eliminate
Savitribai. Secondly, there was no enmity of any kind with Savitribai in
person with any of the appellants. Thirdly, the appellants had gone there
to take possession of the cattle shed and not with an intention to kill any
member of the family of Madhavrao Renge. Fourthly, if at all, if there was
some kind of animosity or jealousy then it was towards A-1 whose panel had
won the election. Savitribai had nothing to do with election because she
never contested the election. Fifthly, despite the appellants armed with
weapons, none of them inflicted any injury or gave blow to Savitribai but
single blow was inflicted only on Madhavrao, who fortunately survived.
Sixthly, Savitribai died due to sustaining of burn injuries, which she
suffered because the appellants ablazed the cattle shed by pouring kerosene
on it. In other words, if the appellants had not ablazed the cattle shed
then the incident of death of Savitribai would not have occurred. Eighthly,
it was a fight on a spur of moment between the two male groups on the issue
of taking possession of cattle shed with no intention to kill any one and
lastly, in the absence of any overt act attributed to any of the appellants
towards Savitribai for inflicting any injury to her, the appellants could
not have been convicted for an offence of committing murder of Savitribai
so as to attract the rigour of Section 302 IPC and instead they should have
been convicted for an offence of culpable homicide not amounting to murder
under Section 304 Part I IPC.
20. In the light of foregoing discussion, we allow the appeals in part.
The appellants are accordingly convicted for an offence punishable under
Section 304 Part-I IPC instead of Section 302 IPC and each of the
appellants is hereby awarded 7 years RI.
21. So far as the conviction and sentence awarded by the courts below
under various other sections, as specified above, are concerned, they are
upheld calling no interference. All the sentences shall run concurrently.

………………………………………J.
[DIPAK MISRA]
………………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;
February 2, 2015.
———————–
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