Prasad Pradhan & Anr. v. The State of

PRASAD PRADHAN & ANR. v. THE STATE OF CHHATTISGARH (Criminal Appeal No. 2025 of 2022) JANUARY 24, 2023 [KRISHNA MURARI AND S. RA VINDRA BHAT, JJ.] Penal Code, 1860 – s.302 r/w s.34 – Murder – Prosecutio n case that appellant/accused and the victim were cousi ns – On the afternoon of 28.02.2012, when the victim was gettin g his land levelled through a JCB machine, the appellants (A-1 and A-2) reached the place and attacked him – It was alleged that A-1 was armed with an axe and he attacked the victim on the head – Ag ainst A-2, the allegation was that he was armed with an a xe and had assaulted the victim on the legs – Regarding A-3, the grandson of A-1 and son of A-2, the allegation was that he went to the spot and caught hold of the victim – Victim sustained several injuries including head injuries – He was taken to the hospital and was exami ned by a doctor (PW11) – As serious head injuries were involved, the victim was operated by another doctor (PW15) – However, the victim could not survive and died on 22.03.2012 – PW14, doctor conducted the post-mortem and, in his report, (Ex. P-28), stated that death was caused by injuries sustained by the victim on the head – Tr ial Court convicted all the accused and sentenced them to life imp risonment, for the offence of murder, and six months rigorous imprisonment for the offence u/s.323 IPC – High Court acquitted A-3 on both counts, but affirmed the conviction and sentence of t he appellants (A1 and A2) – Held: The nature of the attack by the appellant s and the quality of eyewitness testimony of prosecution witnesses, especially PW1 to PW5, cannot be doubted – The circumstance th at most of the witnesses were related to the deceased doe s not per se exclude their testimony– Appellants were armed, a fact w hich shows pre-meditation on their part – Appellants attacked victim on the head, which is a vital part of the body, thus taking undue advant age of their situation – Lapse of time i.e. victim dying after 20 days, would not per se constitute a determinative factor as to diminish the offender’s liability from the offence of murder to that of culpable homicide, not amounting to murder – Conviction and sentence imposed on the appellants, upheld. Dismissing the appeal, the Court HELD:1. The circumstance that most of the witnesses were related to the deceased does not per se exclude their testimony. Although PW1 is the deceased’s daughter, that is insufficie nt to doubt the veracity of what she recounted during the trial, which is that she saw the appellants attack her father wit h axes. She tried to intervene and save the deceased, upon whic h she was also given axe blows on her leg. There is no explanation on th e part of the appellants as to why the witness should depose falsely; nor is there any explanation as to how she could have receiv ed her injuries. Most importantly, her testimony is corrob orated by PW2, PW3 and PW4. [Para 14][249-D-F]

¶2To determine the culpability of appellants whether t hey are guilty for the offence of murder, punishable und er Section 302, or whether they are criminally liable under the les s severe Section 304, IPC, several previous judgements of this Cour t may be relied upon. [Paras 15 and 16][249-G-H] Virsa Singh v. State of Punjab [1958] SCR 1495; State of Andhra Pradesh v. Rayavarapu Punnayya & Anr . [1977] SCR 1 601 and Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444 : [2006] 4 Suppl. SCR 633 – relied on.

¶3The requirement of Section 300 IPC thirdly is fulfill ed if the prosecution proves that the accused inflicted an inju ry which would been sufficient to have resulted in death of t he victim. The determinative fact would be the intention to cause such injury and what was the degree of probability (gravest, medium, or the lowest degree) of death which determines whether th e crime is culpable homicide or murder. [Para 18][256-E]

¶4The case law on the issue of the nature of injury be ing so dangerous as to result in death (Section 300 fourth ly), have emphasised on the accused’s disregard to the consequ ences of the injury, and an element of callousness to the re sult, which denotes or signifies the intention. [Para 19][256-F] State of Madhya Pradesh v. Ram Prasad, [1968] 2 SCR 522 and Santosh S/o. Shankar Pawar v. State of Maharashtra (2015) 7 SCC 641 : [2015] 4 SCR 962– relied on.

¶5In the present case, there is no difficulty in acc epting the concurrent findings that are firstly, the appellants were aggressors; secondly , they attacked the deceased, with axes; thirdly , the deceased was unarmed; fourthly , during the attack, the victim’s daughter, PW1 reached the spot, and tried to dissuade the appellants; fifthly , the appellants continued their assault on the victim and also attacked the witness with an axe ; sixthly , since three injuries sustained by the appellant, were on the head, he fell down; seventhly , the victim was rushed to the hospital, and had to be shifted to another speciality hospital, f or surgery. Eighthly , the deceased was not able to record his statement; he was never discharged and died in the hospital, afte r 20 days. Lastly, the doctor who conducted the post-mortem (P W-14), stated that the injuries were caused by a hard and blun t object, and death of the deceased was due to cardio respiratory fai lure “as a result of multiple injuries on his body and their complications ”. Apart from the head, there were several other injur ies, in the form of abrasions, contusions on the elbow, the low er back, fracture of rib cage, etc. [Para 20][257-F-H; 258-A-B]

¶6Then, the issue is whether in this case the factual matrix is covered by Exception 4 of Section 300. It is cle ar that the testimonies of the two important eyewitnesses, PW1 and PW2, establish that when the deceased was levelling the septic tank on his property, the accused/appellants started abusi ng him; he asked them not to. The appellants, who were in the adjacent property, climbed the wall, entered the deceased’s h ouse, and attacked him with axes. These facts do not constitute a “s udden quarrel”, given that the appellants abused the deceas ed, in an unprovoked manner, and then they went to where he was, arm ed with axes, and assaulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a cruel manner, or did not take undue advantage. This is because they were armed: a fa ct which shows pre-meditation on their part. Moreover, they both PRASAD PRADHAN & ANR. v. THE STA TE OF CHHA TTISGARH attacked the victim on the head, which is a vital part of the body, thus taking undue advantage of their situation. It is also, likewise, not clear whether the deceased said anything to the ap pellants which triggered their ire, leading to loss of self-control as to result in “grave and sudden provocation”. [Paras 22 and 24][258-D-G; 260-B] K.M. Nanavati v. State of Maharashtra 1962 SCR Suppl. (1) 567-relied on.

¶7Several judgments emphasize that a lapse of time , (between the attack and death) would not per se constitute a determinative factor as to diminish the offender’s liabil ity from the offence of murder to that of culpable homicide, not amounting to murder. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. Howeve r, what is important is the nature of injury, and whether it is sufficient i n the ordinary course to lead to death. [Para 25 and 26][260-D, E-F] Om Parkash v. State of Punjab, [1992] 3 SCR 921; Patel Hiralal Joitaram v. State of Gujarat 2002 (1) SCC 22 : [2001] 4 Suppl. SCR 378 and Sudershan Kumar v. State of Delhi, 1975 (3) SCC 831 : [1975] 2 SCR 520 – referred to. Case Law Reference [1975] 2 SCR 520 referred to Para 12 [1958] SCR 1495 relied on Para 15 [1977] 1 SCR 601 relied on Para 16 [2006] 4 Suppl. SCR 633 relied on Para 16 [1968] 2 SCR 522 relied on Para 19 [2015] 4 SCR 962 relied on Para 19 [1962] 1 Suppl. SCR 567 relied on Para 23 [2001] 4 Suppl. SCR 378 referred to Para 25 [1992] 3 SCR 921 referred to Para 25 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2025 of 2022 From the Judgment and Order dated 20-02-2019 of the High Court Of Chhattisgarh at Bilaspur in CRA No. 178/2013. Ravi Prakash Mehrotra, Sr. Adv., Apoorv Srivastava, Jogy Scaria, Advs. for the Appellants. Sourav Roy, Dy. AG, Mahesh Kumar, Kaushal Sharma, Nikhilesh Kumar, Ms. Devika Khanna, Mrs. V. D. Khanna, Vmz Chambers, Advs. for the Respondent. The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

¶1This appeal, by special leave, arises from the judgment and order of the Chhattisgarh High Court 1, affirming the conviction recorded, and the sentence imposed, upon the present appellants.

¶2The State of Chhattisgarh (hereafter “the state”) pr osecuted the appellants in relation to an incident, leading to the dea th of one Vrindawan. The prosecution’s allegation was that the appellant/accused and Vrindawan, the deceased, were cousins. On the a fternoon of

28.02.2012, when the deceased was getting his land levelled through a JCB machine, the appellants reached the place and at tacked him. Vrindawan sustained several injuries including head injuries . He was taken to the hospital and was examined by Dr. Bhageshwar Patel (PW11). As serious head injuries were involved Vrindawan was operated u pon by Dr. S.N. Madhariya (PW15). However, Vrindawan could not survive and died on 22.03.2012. Dr. S.K. Bagh (PW14) conducted the post-mortem and in his report (Ex. P-28), stated that death was caused by injuries sustained by the deceased on the head.

¶3The police registered a case under Section 302 read wit h 34 Indian Penal Code (hereafter “IPC”) against all accused, ba sed on a first information report (hereafter ‘FIR’) lodged by Aarti Pradhan (PW1) the deceased Vrindawan’s daughter. The FIR (Ex. P-1) alleged that the appellants reached the spot, abused Vrindawan and then assaulted him. The allegation against A-1 Prasad Pradhan was that he was armed with an axe and attacked the deceased on the head. Against A-2 L ingraj Pradhan, the allegation was that he was armed with an axe an d had 1 Dated 20.02.2019 in Cr. A. No. 178/2013 CHHATTISGARH assaulted the deceased on the legs. Regarding the third accused person - Soudagar Pradhan, who is grandson of A-1 and son of A-2, the allegation was that he went to the spot and caught hold of the deceased. Soudagar Pradhan, however, is not an appellant before this court.

¶4After the final report was filed, the trial court charged all three accused persons of sharing common intention and then committing the murder of Vrindawan – they were charged for offences under Sec tion 294, 323 read with 34, 302 read with 34, IPC. The appellants, having abjured guilt, were put to trial. The prosecution examined as many as 15 witnesses. Aarti Pradhan (PW1), Narrotam (PW2), Safed Pradhan

(PW3), Rukni (PW4), Ayodhya Bai (PW5) and Navin Sahu (PW6) are relatives of the deceased. The appellants examined two defence witnesses. The court held all the appellants guilty of commission of the offence alleged against them and sentenced them: life imprisonment, for the offence of murder, and six months rigorous imprisonment for the offence under Section 323 IPC. The appellants’ appeal before the High Court was partly allowed by the impugned judgment. The High Cour t acquitted Soudagar Pradhan on both counts, but affirmed the conviction and sentence of the present appellants (A1 and A2). They are, resultantly, before this court. Contentions of the appellants

¶5The appellants argue that the prosecution evidence ought to be discarded. The credibility of the three eyewitnesses is im peached, as they were related to the deceased and further, according to the appellants, their statements otherwise suffer from material contradi ctions and are implausible. Learned counsel submitted that taken as a whole, the evidence cannot lead one to conclude that the finding of common intention is made out. Learned counsel argued that the dispute arose i n a flash, suddenly at the spot when the deceased -Vrindawan started getting the disputed land levelled, due to which the appellants (who lived i n the same locality in adjacent houses) went out of their houses, and allegedly assaulted the deceased. Therefore, in these circumstances, it is argued, the appellants are liable only to the extent of their individual overt acts. It was argued alternatively, that the incident happened all of a sudden and without premeditation. The appellants had no intention to cause death but deter Vrindawan from doing any activity on the dis puted land. Therefore, the conviction of the appellants may not travel beyond Section 304 Part-II IPC.

¶6Learned counsel for the appellants also argues that the de ath of Vrindawan took place after about 20 days of the incident on account of complication in the surgery and it cannot be said that the cause of death was injury as the prosecution could not prove that injury caused to the deceased, in ordinary course of nature, was sufficient to cause death. Learned counsel highlighted that the injury caused by the app ellants, particularly the head injury, was stitched in and had healed. Learned counsel emphasized that Vrindawan died as a result of cardio-respiratory failure, as stated by PW14. Such being the case, the finding of the courts below that the appellants were guilty of the offence of Section 302 IPC was clearly in error of law. It was argued that arguendo, if the prosecution could be said to have proved the attack by the appellants on the deceased, the cause of death neither being immediate nor a direct result of it, there is no question of the ingredients of the off ence of murder under Section 302 IPC having been proved beyond reasonable doubt.

¶7It was submitted that taken together, the appellants could, a t the highest, be convicted of the offence of culpable homicide not amounting to murder under Section 304 Part I IPC since it was neither their intention to kill the deceased nor was the injury sufficient to cause death in the ordinary course of nature – which was borne out by the circumstance of him surviving the attack for 20 days. It was submitted that the appellants should be granted the benefit of a modified conviction to one, under that provision. Justifying the submission, the learned counsel stated that there was a prior history of disputes between the appellants and the deceased. The deceased’s conduct in calling for a he avy JCB machine, to get the tank on the property repaired, w as a sudden provocation, given the history of bad blood, which the prosecution witness PW1 in fact, deposed to. Therefore, the exception to Section 300 IP C was attracted to the facts of this case.

¶8It was submitted that the High Court erred in failing to give the benefit of doubt to the appellants, in the manner that it did to the t hird accused - Soudagar Pradhan. It was contended that the evidence and materials in respect of his alleged involvement were the same as in the case of the appellants; therefore, they too, were entitled to be treated in a like manner and acquitted. Contentions of the state/respondent

¶9It was argued, on behalf of the state, that the concurrent findings of the courts below - as well as the sentence imposed, do not call for interference, as they do not contain any glaring infirmity or error. Learned counsel relied on the depositions by the two doctors and also highlighted that the victim never recovered from his injuries; he was not even in a position to record a statement. It was also argued that for the entire duration that the victim was alive after the incident, he was in the hospital, where he never recovered and died there itself.

¶10It was argued that the credibility of PW1 as an eye witness cannot be questioned; she was, in fact, also a victim of the a ttack and had received injuries on her leg, due to an axe blow given by one of the accused/appellants. Likewise, learned counsel stated that PW2, another brother of the deceased, had corroborated the evidence of PW1 on all material aspects. He had seen both accused, armed in the manner deposed to by PW1, attacking the deceased. Further, PW3, the wi fe of the deceased also corroborated the testimonies of the other two witnesses. Though she did not witness the actual assault, she had seen t he two appellants armed with axes. PW4, sister-in-law of PW3, to o, deposed that Vrindawan was attacked by the accused whilst he was eng aged in cleaning near the septic tank and that the two appellants at tacked him with axes.

¶11Learned counsel argued that the medical examination of the deceased was conducted by Dr. Bhageshwar Patel (PW11 ), who prepared the medical report (Ex. P-21). The Surgeon , Dr. S.N. Madhariya (PW15) deposed that the back of the deceased’s skull w as broken and was operated upon. Dr. S.K. Bagh (PW14), who conducted post-mortem, clearly stated regarding cause of the death, in the present case, which pointed out to cardio-respiratory failure, due to mul tiple injuries. In the cross examination, the appellants could not elicit from the witness that the injury caused to the deceased in the ordinary course of nature was insufficient to cause death or that the death occurred due to surgical complication and not because of injury.

¶12Learned counsel for the state relied on this court’s decisions in Sudershan Kumar v. State of Delhi 2, State of Rajasthan v. Arjun Singh & Ors. 3, State of Rajasthan v. Kanhaiya Lal 4, and State of Rajasthan v. Leela Ram 5 to urge that the facts of this case, do not 2 1975 (3) SCC 831 3 2011 (9) SCC 115 4 2019 (5) SCC 639 5 2019 (13) SCC 131 support the appellants’ contention that the offence of culpable homicide under Section 304 Part II is made out. It was submitted tha t the pre-existing dispute, in this case, could not be said to constitute a “grave and sudden” provocation. Further, the circumstance that the victim survived for some length of time, ipso facto is an irrelevant factor since the prosecution established that the cause of the death was directly linked to the injuries sustained, which in turn were inflicted by the appellants.

¶13Learned counsel submitted that Exception 4 to Section 300 IPC is clearly not attracted in the facts of this case because the appellants had, in fact, behaved in an unusual and cruel manner and also took undue advantage of the situation because they were fully armed, and inflicted serious injuries upon the deceased, who was neither armed nor provoked them. Analysis and conclusions

¶14In this case, the nature of the attack by the appellants and the quality of eyewitness testimony of prosecution witnesses, especially PW1 to PW5, cannot be doubted. This court is of the opin ion that the circumstance that most of the witnesses were related to th e deceased does not per se exclude their testimony. The test of credibility or reliability when applied, is fully satisfied in respect of the s trength of their testimonies. Although PW1 is the deceased’s daughter, that is insufficient to doubt the veracity of what she recounted during the trial, which is that she saw the appellants attack her father with axes. She tried to intervene and save the deceased, upon which she was also given axe blows on her leg. There is no explanation on the part of the appellants as to why the witness should depose falsely; nor is there any explanation as to how she could have received her injuries. Most importantly, her testimony is corroborated by PW2, PW3 and PW4. Therefore, this court is of the opinion that all the material aspects of the factual ac cusations against the appellants and how they attacked the deceased in an unpr ovoked manner, cannot be doubted.

¶15The question, then, is whether the appellants are guilty of the offence of murder, punishable under Section 302, or whether they are criminally liable under the less severe Section 304, IP C. As noted in several judgments, this question has engaged the courts for over a century. The distinction between these two is discernible in the manner they are defined, under Section 299 6 IPC and Section 300 7 IPC. In a decision, Section 299 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 slicks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby ca used. 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 I.—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 inju ry, 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 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 form, though the chi ld may not have breathed or been completely born. 7 300 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 th at 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

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ord inary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of se lf-control by grave and sudden provocation, causes the death of the person who gav e 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 volunt arily 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

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z”s child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to, A, A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z’s nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to su dden and violent passion in consequence, and kills Z. This is murder, in as muc h as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. 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 which is now considered to be the locus classicus on the issue, Virsa Singh v. State of Punjab, 8 this court stated as follows: “The prosecution must prove the following facts before it can bring a case under S. 300 ‘3rdly’. First, it must e stablish, quite objectively, that a bodily injury is present; second ly the nature of the injury must be proved. These are purely objec tive investigations. It must be proved that there was an intention to inflict that particular injury, that is to say that i t was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it m ust be proved that the injury of the type just described made u p of the three elements set out above was sufficient to cause de ath in the ordinary course of nature. This part of the enqu iry is purely objective and inferential and has nothing to d o with the intention of the offender.” by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any inte ntion 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, shoo ts 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 p arty 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. 8 [1958] S.C.R. 1495

¶16In State Of Andhra Pradesh v. Rayavarapu Punnayya & Anr. 9 another oft-cited judgment, this court observed as follows: “Clause (b) of Section 299 corresponds with clauses (2) and

(3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in s uch a peculiar condition or state of health that the interna l harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal hea lth or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the int ention of causing the bodily injury coupled with the offen der’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killi ng within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. Clause (b) of Section 299 does not postulate any su ch knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be wher e the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged live r, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupt ure of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge abou t the disease or special frailty of the victim, nor an in tention to cause death or bodily injury sufficient in the ordinary cour se of nature to cause death, the offence will not be murder, e ven if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words “l ikely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary cour se of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if ov erlooked, may result in miscarriage of justice. The difference be tween 9 1977 SCR (1) 601 clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting fr om the intended bodily injury. To put it more broadly, it is the degre e of probability of death which determines whether a culpa ble homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sen se of “probable” as distinguished from a mere possibilit y. The words “bodily injury … sufficient in the ordinary cour se of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordi nary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries suff icient to cause death in the ordinary course of nature. Rajwant v. St ate of Kerala [AIR 1966 SC 1874: 1966 Supp SCR 230: 196 6 Cri LJ 1509.] is an apt illustration of this point.” The court then quoted the decision in Virsa Singh (supra) , and held that: “Thus according to the rule laid down in Virsa Singh’s cas e (supra) even if the intention of accused was limite d to the infliction of a bodily injury sufficient to cause de ath in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illu stration

(c) appended to S. 300 clearly brings out this point. Clause (c) of S. 299 and clause (4) of S. 300 both require knowledge of the probability of the causing death. I t is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of S. 300 would be a pplicable where the knowledge of the offender as to the probabil ity of death of a person or persons in general—as distingu ished from a particular person or persons—being caused fro m his imminently dangerous act, approximates to a practic al certainty. Such knowledge on the part of the offend er must be of the highest degree of probability, the act havi ng been committed by the offender without any excuse for inc urring the risk of causing death or such injury as aforesaid. ” A later decision, Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh 10 considered these aspects and held that: “29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will dec ide whether the case falls under Section 302 or 304 Par t I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utt erance 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. The re may be no premeditation. In fact, there may not eve n 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 t here 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 provoca tion, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion; 10 (2006) 11 SCC 444

(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 seve ral blows. The above list of circumstances is, of course, not exhaus tive and there may be several other special circumstance s with reference to individual cases which may throw light o n the question of intention.”

¶17The question in cases, like the present one is, therefore, whether the injury caused due to the attack is one which falls within the description of Section 300 thirdly ( “If it is done with the intention of causing bodily injury to any person and the bodily injury i ntended to be inflicted is sufficient in the ordinary course of n ature to cause death”) or if it falls within the mischief of Section 300 fourthly (“ If the person committing the act knows that it is so imminently dan gerous that it must, in all probability, cause death or such bodily i njury 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”).

¶18The requirement of Section 300 thirdly is fulfilled if the prosecution proves that the accused inflicted an injury which would been sufficient to have resulted in death of the victim. The determinative fact would be the intention to cause such injury and what was the degree of probability (gravest, medium, or the lowest degree) of death which determines whether the crime is culpable homicide or murder.

¶19The case law on the issue of the nature of injury bei ng so dangerous as to result in death (Section 300 fourthly), have emphasised on the accused’s disregard to the consequences of the inj ury, and an element of callousness to the result, which denotes or signif ies the intention. In State of Madhya Pradesh v. Ram Prasad, 11 this court held that: “Although Clause fourthly is usually invoked in thos e cases where there is no intention to cause the death of any particular person (as the illustration shows) the Clause may on its terms be used in those cases where there is such callousness t owards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. R ajji 11 1968 (2) SCR 522 and set fire to those clothes. It is obvious that such fire sp reads rapidly and burns extensively. No special knowledge is neede d to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious t hat Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was like ly to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly o f Section 300, Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he di d not intend causing the death of Mst. Rajji. He committed an ac t so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to c ause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.” Similarly, three Judges of this Court, in Santosh S/o. Shankar Pawar v. State of Maharashtra 12 observed , “13. Even assuming that the Accused had no intention to cause the death of the deceased, the act of the Accused falls u nder Clause Fourthly of Section 300 Indian Penal Code that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intellig ence would have the knowledge that pouring of kerosene a nd setting her on fire by throwing a lighted matchstic k is so imminently dangerous that in all probability such an act would cause injuries causing death.”

¶20Turning back to the facts of this case, the concurrent findings which this court sees no difficulty in accepting are that firstly, the appellants were aggressors; secondly, they attacked the deceased, with axes; thirdly, the deceased was unarmed; fourthly, during the attack, the victim’s daughter, PW1 reached the spot, and tried to dissuade the appellants; fifthly, the appellants continued their assault on the victim and also attacked the witness with an axe; sixthly, since three injuries sustained by the appellant, were on the head, he fell down; seventhly, the victim was rushed to the hospital, and had to be shifted t o another speciality hospital, for surgery. Eighthly , the deceased was not able to record his statement; he was never discharged and died in the hospital, 12 (2015) 7 SCC 641 after 20 days. Lastly, the doctor who conducted the post-mortem (PW-14), stated that the injuries were caused by a hard and blunt object, and death of the deceased was due to cardio respiratory failure “as a result of multiple injuries on his body and their complica tions”. Apart from the head, there were several other injuries, in the form of abrasions, contusions on the elbow, the lower back, fracture of rib cage, etc. At the time of death, Vrindawan was aged 55 years.

¶21There is evidence in the form of statements of both P W1 (Vrindawan’s daughter) and PW2 (Vrindawan’s brother, Narottam) that the deceased and the appellants had pre-existing disputes. Ho wever, both these witnesses corroborated each other and stated that the quarrel or dispute pertained to land had existed for a long time. P W2, in fact, stated that partition of properties had taken place amongst the brothers, despite which these quarrels had persisted.

¶22The question then is - was there a “sudden quarrel” between the deceased and the appellants so that the case would not be murder, but culpable homicide, in terms of Exception 4 ( “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” ). In the opinion of this court, there was no “sudden quarrel”. The testimonies of the two impo rtant eyewitnesses, PW1 and PW2, establish that when the deceased w as levelling the septic tank on his property, the accused/appellants started abusing him; he asked them not to. The appellants, who were in t he adjacent property, climbed the wall, entered the deceased’s house, and attacked him with axes. These facts do not constitute a “sudden quarrel”, given that the appellants abused the deceased, in an unprovoked manner, and then they went to where he was, armed with axes, and ass aulted him. Arguendo, even if the facts are assumed to disclose that there was a sudden fight, it cannot be said that the accused failed to act in a cruel manner, or did not take undue advantage. This is because they were armed: a fact which shows pre-meditation on their part. Moreover, they both attacked Vrindawan on the head, which is a vital part of the body, thus taking undue advantage of their situation.

¶23Again, on the question of whether the facts of this case a re covered by the first exception to Section 300, i.e., that the acc used/ appellants did what they were accused of (which is to attack and inflict grave injuries that led to the death of Vrindawan), because of their loss of self-control, on account of a grave and sudden provocation – the answer must be the same, which is that the provision (Except ion 1 to Section 300) cannot be attracted. Apart from a long-standing pre-existing dispute, what caused “sudden” provocation to the appellants, has not been shown by them. Neither did they lead any evidence, to fall within Exception 1, nor did the evidence on record substantiate such a contention. Speaking of what is grave and sudden provocation, this court in K.M. Nanavati v. State of Maharashtra 13 explained the standard of reasonableness for applying the “grave and sudden” provocation, in the following manner: “84. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, wa y of life, traditional values etc.; in short, the cultural, soci al and emotional background of the society to which an Acc used belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard wit h precision: it is for the court to decide in each ca se, having regard to the relevant circumstances. It is not nece ssary in this case to ascertain whether a reasonable man pla ced in the position of the Accused would have lost his sel f-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satis fied on the evidence that the Accused regained his self-contr ol and killed Ahuja deliberately.

¶85The Indian law, relevant to the present enquiry, ma y be stated thus: (1) The test of “grave and sudden” provocati on is whether a reasonable man, belonging to the same class of society as the Accused, placed in the situation in wh ich the Accused was placed would be so provoked as to lose his sel f-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provoca tion to an Accused so as to bring his act within the First Excep tion to Section 300 of the Indian Penal Code. (3) The me ntal background created by the previous act of the victim may be taken into consideration in ascertaining whether th e subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be c learly traced to the influence of passion arising from tha t 13 1962 SCR Supl. (1) 567 provocation and not after the passion had cooled do wn by lapse of time, or otherwise giving room and scope f or premeditation and calculation”

¶24If one were to apply the above tests to the present case, what is evident is that while there were pre-existing disputes of some vintage, between the appellants and the deceased, there is nothing to show th at they had been aggravated. It is also, likewise, not clear whe ther the deceased said anything to the appellants which triggered their ire, leading to loss of self-control as to result in “grave and sudden provocation”. In any case, if there were something, the appellants ought to have brought the relevant material or evidence on record, as what facts did exist, was within their peculiar knowledge.

¶25During the hearing, the appellants counsel had urged that Vrindawan died 20 days after the attack, and the lapse of such a time shows that the injuries were not sufficient to cause death in the ordinary course of nature. On this aspect, there are several judgm ents, which emphasize that such a lapse of time, would not per se constitute a determinative factor as to diminish the offender’s liability from the offence of murder to that of culpable homicide, not amounting to murder. In Om Parkash v. State of Punjab, 14 the death occurred 13 days after the attack; the accused was convicted of murder. Similarly, in Patel Hiralal Joitaram v. State of Gujarat, 15 the death occurred a fortnight after the attack, and in Sudershan Kumar (supra), the death occurred 12 days after the attack.

¶26There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. However, what is important is the nature of injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor in this case, because the doctor who conducted the post-mortem clearly deposed that death was caused due to cardio respiratory failures, as a result of the injuries inflicted upon the deceased. Thus, the injuries and the death were closely and directly linked.

¶27In view of the above discussion, this court is of the opinion that there is no infirmity in the impugned judgment. The conviction and sentence imposed on the appellants do not therefore, call for interference. The appeal is consequently dismissed, without order on costs. 14 1992 (3) SCR 921 15 2002 (1) SCC 22 Bibhuti Bhushan Bose Appeal dismissed. (Assisted by : Kritika, LCRA)