NANKAUNOO Vs. STATE OF UP
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 313 - Power to examine the accused.
Section 302 - Punishment for murder
Section 304 - Punishment for culpable homicide not amounting to murder
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Crl.), 46 of 2016, Judgment Date: Jan 19, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 46 OF 2016
(Arising out of SLP (Crl.) No.7437 of 2013)
NANKAUNOO ….Appellant
Versus
STATE OF U.P. ...Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 16.05.2013 passed by the
High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal
No.775 of 1981, whereby the High Court affirmed the conviction of the
appellant-accused under Section 302 IPC and also sentence of imprisonment
for life imposed on him.
3. Briefly stated case of the prosecution is as under:- Deceased-Chhedi
Lal was running a barber shop in Kurari Khurd Market. On 18.02.1981, the
appellant visited the shop of Chhedi Lal and asked for a haircut. An
altercation took place between the two when appellant insisted the deceased
for haircut claiming preference over other customers; but the deceased-
Chhedi Lal declined his demand. The appellant felt insulted and left the
barber shop threatening the deceased. At around 5.00 p.m., deceased-Chhedi
Lal closed the shop and went back home. Later at 6.00 p.m., the deceased
went towards the canal lying in the western side of the village abadi to
answer the nature’s call. When the deceased reached near the eastern mend
of the grove of Ishwari, the appellant emerged from the northern side
carrying a pistol in his hand and threatened the deceased as he had
insulted the appellant in the market and that he would not spare him alive.
The deceased fled towards the west to save himself and appellant fired
from his pistol which hit the deceased on his left thigh and he had fallen
down. The incident was witnessed by Janoo-PW2, Udan-PW3 and Muneshwar.
Also father of the deceased namely Kishore-PW1 and his son-Ram Pal saw the
incident when they were returning from their field. On the alarm raised by
the deceased and the witnesses, the appellant fled away from the scene.
The deceased was taken on a cot to his house and on the narration of
incident by Kishore-the father of the deceased, the complaint was written
by Shiv Pujan Singh. Thereafter, deceased was taken to Police Station-Achal
Ganj, where FIR (Ex. Ka-1) bearing Crime No.37/81 dated 18.02.1981 was
registered against the appellant under Section 307 IPC. SI-Ravinder Prasad
Yadav (PW-6) recorded the statement of Chhedi Lal who was lying injured on
the kharkhara outside the Police Station and the deceased was sent to Achal
Ganj Hospital from where he was referred to District Hospital Unnao; but
the deceased died on the way to the hospital. FIR was altered from Section
307 IPC to Section 302 IPC and further investigation was taken up. After
inquest by the police, post mortem was conducted by Dr. J.N. Bajpai (PW-4)
at District Hospital Unnao on 19.02.1981 at 3.30 p.m. PW-4-Dr. Bajpai noted
a gunshot would of entry ½” x ½” on the back and inner part of left thigh
and six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle
left thigh. Dr. J. N. Bajpai (PW-4) opined that the death was due to shock
and hemorrhage due to injuries of firearm. After completion of
investigation, chargesheet was filed against the appellant under Section
302 IPC. After committal of the case to the Sessions Court, charge was
framed against the appellant under Section 302 IPC.
4. To bring home the guilt of the accused-appellant, prosecution has
examined in all eight witnesses and exhibited the material object on
record. The incriminating evidence and circumstances were put to the
appellant under Section 313 Cr.P.C. and the accused denied all of them and
pleaded that he was falsely implicated. Upon consideration of the
evidence, the Sessions Judge, Unnao found the appellant guilty of the
offence under Section 302 IPC and sentenced him to undergo imprisonment for
life. Being aggrieved, the appellant preferred appeal before the High
Court which was dismissed by the impugned judgment.
5. Learned counsel for the appellant Mr. Kapil Arora submitted that the
prosecution could not have relied on the testimony of PWs 1, 2 and 3 as PW-
1-Kishore, father of the deceased, is an interested witness and PWs 2 and 3
are the inimical interested witnesses and the trial court was not right in
basing the conviction of the appellant on the testimony PWs 1 to 3 and the
High Court erred in confirming the conviction. It was further contended
that the courts below failed to take note of the fact that the alleged
weapon of murder ‘countrymade pistol’ was never recovered by the
investigating officer and in the absence of clear connection of the weapon
used for crime and resultant injury, the prosecution cannot be said to have
proved its case beyond reasonable doubt.
6. Per contra, learned counsel for the respondent-State Ms. Pragati
Neekhra submitted that witnesses have consistently deposed that the
appellant threatened the deceased that he would not be spared alive and
thereafter fired shot from his loaded pistol and medical evidence amply
corroborates the version of the eye witnesses and the courts below rightly
convicted the appellant under Section 302 IPC.
7. We have carefully considered the rival contentions and perused the
impugned judgment and the material on record.
8. PW-1 Kishore, PW-2 Janoo and PW-3 Udan have given consistent version
about the occurrence that the appellant fired at the deceased-Chhedi Lal
with ‘countrymade pistol’ which he was carrying in his hand. Despite the
searching cross-examination, nothing substantial was elicited from the
witnesses to discredit their testimony. In the context of unimpeachable
oral evidence coupled with the medical evidence that deceased-Chhedi Lal
met with homicidal death due to gunshot injuries, trial court rightly held
that the appellant was responsible for the death of Chhedi Lal. High Court
rightly agreed with the finding of the trial court that PWs 1 to 3 were
reliable witnesses. Having heard the learned counsel for the parties and
on going through the record, we do not find any reason to disbelieve the
evidence of eye witnesses-PWs 2 and 3.
9. Learned counsel for the appellant contended that the courts below
failed to take note of the fact that the alleged weapon ‘countrymade
pistol’ was never recovered by the investigating officer and in the absence
of any clear connection between the weapon used for crime and ballistic
report and resultant injury, the prosecution cannot be said to have
established the guilt of the appellant. In the light of unimpeachable oral
evidence which is amply corroborated by the medical evidence, non-recovery
of ‘countrymade pistol’ does not materially affect the case of the
prosecution. In a case of this nature, any omission on the part of the
investigating officer cannot go against the prosecution case. Story of the
prosecution is to be examined dehors such omission by the investigating
agency. Otherwise, it would shake the confidence of the people not merely
in the law enforcing agency but also in the administration of justice.
10. Learned counsel for the appellant then contended that the gunshot
injury was on the lower part of the left thigh which is a non-vital organ
and it cannot be said that the appellant intended to cause the death of the
deceased and therefore the conviction of the appellant under Section 302
IPC is not sustainable. In the light of the above contention, the question
falling for consideration is whether the conviction of the appellant under
Section 302 IPC is sustainable.
11. Intention is different from motive. It is the intention with which
the act is done that makes a difference in arriving at a conclusion whether
the offence is culpable homicide or murder. The third clause of Section
300 IPC consists of two parts. Under the first part it must be proved that
there was an intention to inflict the injury that is present and under the
second part it must be proved that the injury was sufficient in the
ordinary course of nature to cause death. Considering the clause thirdly
of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in
Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12),
this Court held as under:-
“12. Referring to these observations, Division Bench of this Court in
Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7)
“These observations of Vivian Bose, J. have become locus classicus. The
test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability
of Clause Thirdly is now ingrained in our legal system and has become part
of the rule of law.”
The Division Bench also further held that the decision in Virsa Singh case
AIR 1958 SC 465 has throughout been followed as laying down the guiding
principles. In both these cases it is clearly laid down that the
prosecution must prove (1) that the body injury is present, (2) that the
injury is sufficient in the ordinary course of nature to cause death, (3)
that the accused intended to inflict that particular injury that is to say
it was not accidental or unintentional or that some other kind of injury
was intended. In other words Clause Thirdly consists of two parts. The
first part is that there was an intention to inflict the injury that is
found to be present and the second part that the said injury is sufficient
to cause death in the ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and circumstances that the
intention of the accused was to cause that particular injury. Whereas the
second part whether it was sufficient to cause death is an objective
enquiry and it is a matter of inference or deduction from the particulars
of the injury. The language of Clause Thirdly of Section 300 speaks of
intention at two places and in each the sequence is to be established by
the prosecution before the case can fall in that clause. The ‘intention’
and ‘knowledge’ of the accused are subjective and invisible states of mind
and their existence has to be gathered from the circumstances, such as the
weapon used, the ferocity of attack, multiplicity of injuries and all other
surrounding circumstances. The framers of the Code designedly used the
words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of
the consequences which may result in doing an act is not the same thing as
the intention that such consequences should ensue. Firstly, when an act is
done by a person, it is presumed that he must have been aware that certain
specified harmful consequences would or could follow. But that knowledge is
bare awareness and not the same thing as intention that such consequences
should ensue. As compared to ‘knowledge’, ‘intention’ requires something
more than the mere foresight of the consequences, namely the purposeful
doing of a thing to achieve a particular end.”
12. The emphasis in clause three of Section 300 IPC is on the
sufficiency of the injury in the ordinary course of nature to cause death.
The sufficiency is the high probability of death in the ordinary course of
nature. When the sufficiency exists and death follows, causing of such
injury is intended and causing of such offence is murder. For ascertaining
the sufficiency of the injury, sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is caused and sometimes
both are relevant. Depending on the nature of weapon used and situs of the
injury, in some cases, the sufficiency of injury to cause death in the
ordinary course of nature must be proved and cannot be inferred from the
fact that death has, in fact, taken place.
13. Keeping in view the above principles, when we examine the facts
of the present case, the deceased sustained gunshot wound of entry 1-1/2” x
1-1/2” on the back and inner part of left thigh, six gunshot wounds of exit
each 1/3” x 1/3” in size in front and middle left thigh. Due to the
occurrence in the morning at the barber shop of the deceased, the appellant
emerged from the northern side of the grove carrying pistol in his hand and
fired at the deceased. The weapon used and the manner in which attack was
made and the injury was inflicted due to premeditation clearly establish
that the appellant intended to cause the injury. Once it is established
that the accused intentionally inflicted the injury, then the offence would
be murder, if it is sufficient in the ordinary course of nature to cause
the death. We find substance in the contention of the learned counsel for
the appellant the injury was on the inner part of left thigh, which is the
non-vital organ. Having regard to the facts and circumstances of the case
that the gunshot injury was caused in the inner part of left thigh, the
sufficiency of injury to cause death must be proved and cannot be inferred
from the fact that death has taken place. But the prosecution has not
elicited from the doctors that the gunshot injury on the inner part of left
thigh caused rupture of any important blood vessel and that it was
sufficient in the ordinary course of nature to cause the death. Keeping in
view the situs and nature of injury and in the absence of evidence elicited
from the doctor that the said injury was sufficient in the ordinary course
of nature to cause death, we are of the view that it is a fit case where
the conviction of the appellant under Section 302 IPC should be under
Section 304 Part 1 IPC.
14. In the result, the conviction of the appellant under Section
302 IPC is modified as conviction under Section 304 Part 1 IPC and the
appellant is sentenced to undergo ten years rigorous imprisonment and the
appeal is partly allowed.
…………………….…CJI.
(T.S. THAKUR)
………………………….J.
(A.K. SIKRI)
..………………………..J.
(R. BANUMATHI)
New Delhi;
January 19, 2016
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