Law Web: What is importance of intention in determining whether an offence is murder or culpable homicide?

The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr 1976 (4) SCC 382 notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:

"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa.

Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is,

what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable

homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304..

13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh5. This court observed that:

"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

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.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 856 of 2021

MOHD. RAFIQ @ KALLU Vs THE STATE OF MADHYA PRADESH

Author: S. RAVINDRA BHAT, J.

Dated: September 15, 2021.

1. The appellant is aggrieved by a judgment of the Madhya Pradesh High Court1 which confirmed his conviction for the offence punishable under Section 302 of the Indian Penal Code (“IPC”), and the sentence of rigorous imprisonment for life imposed on him.

2. The facts are that Police Station Jabera received information in the evening of 09.03.1992 that a truck (CPQ 4115) had broken the Forest Department barrier and collided with a motorcycle. The receipt of this information (by means of telephonic conversation) alerted the police. It was further alleged that Sub Inspector (SI) D.K. Tiwari along with others were stationed at a vantage point, on the main road, when the truck reached there. SI Tiwari motioned the truck to stop; it was driven by the appellant. Instead of applying brakes, the accused tried to speed away, upon which SI Tiwari boarded the truck from its left side. At that stage, it is alleged that the accused/appellant

1Dated 27.02.2018 in Crl. A. 1570/1995

warned SI Tiwari not to do so and that he would get killed. Nevertheless, SI Tiwari boarded the truck. Immediately, the appellant pushed him, as a result of which SI Tiwari fell off the truck and he was run over by the rear wheels of the truck. SI Tiwari died. It is further alleged that the appellant fled with the truck. He was later caught, arrested and charged with committing murder of SI Tiwari.

3. In the trial before the Addl. Sessions Judge, Damoh, the prosecution relied upon the depositions of 18 witnesses, besides several exhibits, including the postmortem report, seizure of articles from the site and the deposition of medical witness (PW-6). The prosecution essentially relied upon the statements of PW-2, PW-10, PW-11, PW-14 & PW-15, i.e. the principal eye witnesses. The accused also led oral evidence of three witnesses, including that of Majeed, DW-1, who deposed that he was the conductor who was in the truck when the incident had occurred.

4. After duly considering the entire evidence and materials led before it, the Trial Court, by its judgment and order2 convicted the appellant as charged and sentenced him to rigorous imprisonment for life. The appeal against the conviction and sentence was rejected by the impugned order.

5. It was argued on behalf of the appellant by Ms. Ritu Gangele, Advocate that a close reading of the evidence disclosed that the depositions of PW-2, PW-10, PW-14 and PW-15 contain fatal contradictions and exaggerations. It was pointed out that the prosecution version about the deceased boarding the truck from its left side and being pushed by the appellant was highly improbable given that two witnesses had clearly deposed that the latter, i.e. the accused continued to drive the truck. It was submitted that if such was the position, unless the prosecution established that the deceased had actually boarded the truck and sat in it near the driver, it was impossible for the accused to have pushed him with such force that he would have fallen off and gotten crushed under the rear wheels.

2Dated 04.11.1995 in SC 123/1992

6. Learned counsel also pointed out to depositions of PW-2 and PW10 and

submitted that several improvements were made to the original statements,

recorded during the course of the investigation. It was stated that firstly the

statement made during the investigation by PW-2 did not mention how the

accused was identified when he was in the truck at 09.45 p.m. whereas the

deposition of PW-2 stated that he could identify the accused in the light of the

cabin and tube light on the street. She also pointed out that PW-2 improved

upon his previous statement during the course of the trial inasmuch as he had

not previously stated that the appellant had freed his left hand to push the

deceased and that at the same time he continued to drive with his right hand.

Most crucially, it was submitted by the learned counsel that the witness

nowhere had stated previously that the truck had sped after slowing down – a

position that he deposed to during the course of trial.

7. It was next submitted that the depositions of all the other so-called eye

witnesses were suspicious because they spoke in unison about the incident in a

manner identical to the deposition of PW-2. Learned counsel pointed out to the

improbability of four persons observing an incident in the same manner,

although they were located at different points or places, but painting the same

picture given that the incident had occurred in the dark. It was submitted that all

the witnesses were not standing at the same spot but dispersed at different

points. In these circumstances, the nature of the light, i.e. how well lit the area

was as well as the distance of the concerned witnesses from the concerned

location, i.e. where the incident occurred, became crucial. The Courts below

ignored these important features and held the appellant guilty of murder.

Learned counsel submitted that there was no material on record pointing

towards any motive on part of the accused. She highlighted that the deceased

was not in uniform but rather in plain clothes and that his efforts to board the

vehicle were resisted by the appellant who did not know that he was a public

servant. It was submitted that the question of the appellant having any animus or

intention to commit murder therefore did not arise.

8. Mr. Gopal Jha, appearing for the State urged the Court not to interfere

with the concurrent findings and conviction recorded by the Trial Court and the

High Court. He submitted that both the courts carefully weighed the evidence

and concluded that the appellant deliberately pushed SI Tiwari when he boarded

the truck. What is more, the appellant had also threatened to kill him if SI

Tiwari interfered with the movement of the truck. When SI Tiwari did not heed

and actually boarded the truck, the appellant, in a cold-blooded manner, pushed

him out, and instead of stopping the truck, deliberately ran over SI Tiwari. The

medical evidence also substantiated the prosecution version that the truck had

run over SI Tiwari since his body disclosed multiple injuries, including ruptured

spleen and intestines and that his skull had cracked open. It was submitted that

the arguments on behalf of the appellant with respect to contradictions in the

depositions of the witnesses could not outweigh the overall effect of the

evidence led before the Court which clearly showed that SI Tiwari was pushed

and deliberately ran over by the appellant. These, submitted, the learned

counsel, established the intention to kill beyond reasonable doubt.

Analysis and Conclusions

9. Having carefully considered the record, the evidence of the trial court and

the High Court, as well as the contentions made before this court, the only

question which arises is as to the precise nature of the criminal liability of the

appellant. There can be no serious dispute about the occurrence of the incident;

all the eye witnesses – especially PW-2 deposed about the receipt of

information about a speeding truck which had run through a Forest Department

barrier and which was also involved in an incident with a motorcycle. SI Tiwari

was alerted about this information and therefore positioned himself along with a

few others, on the road. The evidence also discloses that the incident occurred in

the close vicinity of a police station. By the side of the police station, there was

a medical store. The incident apparently occurred at 09.45 P.M. according to the

eye witnesses; in any case, the copy of the First Information Report reveals that

it was recorded at 10:10 PM; it reflects the time of the incident to be 9:50 PM.

There is some contradiction between the statements made during the

investigation by the prosecution witnesses about the source of light: PW-2

admitted that he had not mentioned about any light and that he deposed about it

for the first time in court and that he could identify the accused from a distance

of about 50 feet due to the light source within the truck’s cabin. There cannot be

serious dispute on this aspect because there is no argument that the appellant

was in fact driving the truck. What is more important however, is the exact

sequence of events. The depositions of PW-2, PW-14 and PW-15 are consistent

in that the truck had slowed and that SI Tiwari asked the appellant to stop it.

When the appellant did not pay heed, SI Tiwari attempted and did board the

truck. The appellant at that point allegedly pushed SI Tiwari. This point

becomes crucial because the witnesses consistently deposed that SI Tiwari

boarded the left side of the truck. If so, the accused would have had to use both

his hands depending on how secure SI Tiwari was in the truck. However, PW-

2’s deposition discloses that the accused appellant continued to drive with his

right hand and used his left hand to push SI Tiwari.

10. The High Court, we notice, did not go by the prosecution version entirely

and observed in the impugned judgment that SI Tiwari fell off the truck on

account of “excessive speed of the truck”. If that is the position, the

prosecution’s version that the appellant pushed him and deliberately ran over SI

Tiwari is implausible. The deposition of PW-10 says that the appellant on being

asked to stop had in fact slowed the truck after which a short altercation with SI

Tiwari took place and then the deceased boarded the truck. PW-10 also deposed

that the truck was driven “in an oblique manner”. Given all these factors, the

propensity of the eye witnesses, PW-2, PW-10, PW-14 and PW-15 to improve

upon the actual incident and introduce exaggerations cannot be ruled out as they were the deceased’s colleagues and subordinates. There can however, be no doubt that the incident broadly occurred in the manner the prosecution alleged: upon receipt of the information of the truck being involved in a previous incident with the forest department barrier, SI Tiwari positioned himself along with others in front of the police station. When the appellant arrived at the spot in the truck, SI Tiwari gestured him to stop. Momentarily, he stopped down; after this SI Tiwari boarded from the left side of the truck. It is after this point that the prosecution version seems improbable and somewhat riddled with contradictions. If one considers the fact that at least two eye witnesses turned hostile and that depositions of PW-2 and PW-10 disclose clear improvements, much importance cannot be given to the words uttered by the appellant to SI Tiwari, warning that if he tried to board, he would be killed. Likewise, there is no discussion about the map or the course that the truck took after SI Tiwari fell from the truck, i.e., whether it speeded up and that the appellant intended to drive over and crush SI Tiwari, and that the position where SI Tiwari fell was known by the appellant to be within the line of the rear tyre of the moving truck. 11. The question of whether in a given case, a homicide is murder3, punishable under Section 302 IPC, or culpable homicide, of either description,

3 Sections 299 and 300 IPC define the two offences. They are extracted below:

299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. (c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation

punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term “likely” in several places in respect of culpable Explanation 3.—The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 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, or— 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. Illustrations ******* ******* ****** Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First —That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly —That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly —That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations ******* ******* ****** Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—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. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.”

homicide, highlights the element of uncertainty that the act of the accused may

or may not have killed the person. Section 300 IPC which defines murder,

however refrains from the use of the term likely, which reveals absence of

ambiguity left on behalf of the accused. The accused is for sure that his act will

definitely cause death. It is often difficult to distinguish between culpable

homicide and murder as both involve death. Yet, there is a subtle distinction of

intention and knowledge involved in both the crimes. This difference lies in the

degree of the act. There is a very wide variance of degree of intention and

knowledge among both the crimes.

12. The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr4

notes the important distinction between the two provisions, and their differing,

but subtle distinction. The court pertinently pointed out that:

"12. In the scheme of the Penal Code, "culpable homicide" is genus and

"murder" its specie. All "murder" is "culpable homicide" but not vice- versa.

Speaking generally, "culpable homicide" sans "special characteristics of

murder", is "culpable homicide not amounting to murder". For the purpose of

fixing punishment, proportionate to the gravity of this generic offence, the

Code practically recognises three degrees of culpable homicide. The first is,

what may be called, "culpable homicide of the first degree". This is the

greatest form of culpable homicide, which is defined in Section 300 as

"murder". The second may be termed as "culpable homicide of the second

degree". This is punishable under the first part of Section 304. Then, there is

"culpable homicide of the third degree". This is the lowest type of culpable

homicide and the punishment provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable homicide of this degree

is punishable under the second part of Section 304..

13. The academic distinction between "murder" and "culpable homicide not

amounting to murder" has vexed the courts for more than a century. The

confusion is caused, if courts losing sight of the true scope and meaning of the

terms used by the legislature in these sections, allow themselves to be drawn

into minute abstractions. The safest way of approach to the interpretation and

application of these provisions seems to be to keep in focus the keywords used

in the various clauses of Sections 299 and 300."

13. The considerations that should weigh with courts, in discerning whether

an act is punishable as murder, or culpable homicide, not amounting to murder,

41976 (4) SCC 382

were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra

Pradesh5. This court observed that:

"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