MATHUR, J. - (1.) THIS appeal against the judgment dated 8. 7. 1994 passed by the Additional Sessions Judge No. 2, Hanumangarh convicting the appellant for offence under Sec. 302, I. P. C. and sentenced to imprisonment for life was heard by the Division Bench consisting of Hon'ble Justice V. G. Palshikar and Hon'ble Justice R. R. Yadav. As both the Hon'ble Judges differed in their opinion, in accordance with the provisions of Rule 61a of the Rules of the High Court of Judicature for Rajasthan, 1952 as per the directions of Hon'ble the Chief Justice, this appeal has been placed before me.
(2.) THE prosecution case as disclosed during the trial is as follows. THE appellant Satya Narain @ Satpal was an exorcist and fortune teller in village Pukkabhadwa, District Hanumangarh. People used to visit him either for fortune telling or for exorcism. On 8. 10. 90 at the time of sunset deceased Balram and P. W. 6 Moduram went to the house of the appellant to know about their future and about the evil soul troubling the wife of Balram. It is alleged that accused Satya Narain and his wife Mst. Guddi asked them to bring a bottle of liquor for the sake of offering it to Karnimata as a part of ritual for Akha Dikhana i. e. for future telling. Accordingly, the deceased Balram went out to bring a bottle of liquor as offering to the deity. THE deceased brought two bottles of liquor. THE liquor was offered to the photo of Karnimata kept in the temple. THEreafter the appellant asked all of them present there to drink liquor as prasad. Accordingly, the liquor was consumed by all present in the house except co- accused Mst. Guddi, wife of the appellant. After consuming liquor as prasad of Karnimata the appellant and two other co-accused persons, namely, Mst. Guddi and Kalu, tied hands and feet of P. W. 6 Moduram and Balram by ropes. THE accused persons assaulted deceased Balram and P. W. 6 Moduram. THE appellant was armed with an iron rod whereas co-accused Kaluram was armed with lathi and Smt. Guddi with wooden pitta used for washing cloths. It is also alleged that the appellant struck iron rod on the head of the deceased Balram and also twisted his neck due to which he died. While Balram was being beaten he tried to scream but he was prevented to do so by pressing his neck. P. W. 6 Moduram raised voice to attract the people of the vicinity to interfere on which the accused persons forcibly pushed cotton in his mouth. P. W. 9 Mst. Savitri Devi and P. W. 7 Om Prakash, both wife and son respectively of P. W. 6 Moduram came to know about the beating from P. W. 4 Bhanwara Ram. THEy rushed to the house of the appellant to save him. When P. W. 7 Om Prakash and P. W. 9 Mst. Savitri Devi reached the house of the accused appellant they found the room closed where the beating was being administered by the accused persons to deceased Balram and P. W. 6 Moduram. THE door was opened by Om Prakash and Smt. Savitri Devi. THEy found deceased Balram and Moduram tied with ropes. THEy made a request to the appellant and two other co-accused persons to stop beating and to release them, but they refused to concede their request. On the contrary both the witnesses were threatened that they will be killed if they do not leave the place. Both of them left the place but soon returned with P. W. 10 Ramjas. All the accused persons again refused to stop beating and release P. W. 6 Moduram and deceased Balram. It is stated that the accused persons carried P. W. 6 Moduram to his house and dumped him there. Moduram gave information of the incident to P. W. 1 Kishan Lal, the Sarpanch of the village. THE Sarpanch went to the house of accused Kaluram and inquired about Balram. THEy were told that the appellant had dropped the dead body of Balram in the field of Surjeet Singh. THE body of deceased Balram was recovered from the field of Surjeet Singh. On 9. 10. 90 P. W. 5 Bishna Ram and P. W. 3 Triloka Ram went to P. W. 14 Bhagiram, the brother of the deceased Balram and narrated the incident. On 10. 10. 90 at about 12. 15 P. M. P. W. 14 Bhagiram submitted a written report Ex. P/20 at Police Station, Hanumangarh Junction. On the basis of the said report FIR Ex. P/21 was registered for offence under Sections 302, 307 read with 34, I. P. C. THE police prepared the inquest and sent the dead body of Balram for post-mortem. Moduram was also medically examined. P. W. 11 Dr. Rajendra Kumar Gupta conducted the post- mortem of the dead body of Balram and prepared the post-mortem report Ex. P/18. He found the following injuries on his person: 1. Right temporal bone fractured. 2. Spinal cord and cervical region lacerated. 3. 4th & 5th cervical vertebra dislocated. 4. Extraden haematoma right parietal region and region 2" x 5" THE post mortem report shows that the face of the deceased was swollen, salvia secreted by saliary glands mixed with blood was oozing from his nose, testicles were found to be swollen, 4th and 5th cervical vertebral bones were found to be fractured and spinal cord was lacerated. On opening the skull the doctor found that the right parietal temporal bone was fractured. THE injuries were found to be ante mortem. THE doctor opined that each injury separately and in cumulative effect was sufficient in the ordinary course of nature to cause death. P. W. 11 Dr. Rajendra Kumar also examined the injuries on the person of P. W. 6 Moduram and prepared the injury report Ex. P/19 showing the following injuries: 1. Bruise and Abrasion 1 1/2" x 1/2" left cheek 2. M. Bruise and swelling left upper arm. 3. M. Bruise on the back of the chest. Both sides of abdomen. 4. Swelling and bruise on the left scrotem. 5. Swelling and bruise on right fore arm upper 3/4th portion. 6. Abrasion 3 1/2" x 1/4" on the right hand. 7. Abrasion 3" x 1/8" right forearm posterior upper half. 8. Abrasion 3/4" x 1/8' right hand posterior. 9. Abrasion 2" x 3/8" right arm lateral upper 1/2. 10. Swelling 1"x1" occipital region. 11. Swelling and slight laceration 1" x 1" on the right parietal region. 12. Bruise 6" x 4" life Iliac region. 13. Bruise 6" x 6" Left thigh lateral posterior upper half. 14. Abrasion 3" x 1/8" left thigh posterior. 15. Swelling and bruise on left leg middle 1/3 part. 16. Abrasion 1" x 3/8" right leg ant. upper 1/3. 17 Abrasion 3/4" x 3/8" right leg post. middle 18. Bruise and swelling right genital region & right thigh upper 1/4th. 19. Bruise and laceration on lower lip. THE appellant Satya Narain was arrested on 25. 10. 90 vide Ex. P/22. In pursuance of his information the iron rod was recovered vide Ex. P/7. In pursuance of the information given by accused Satya Narain the blood stained rope and a writ watch were also recovered. THE incriminating articles were sent for chemical analysis. After usual investigation the police laid charge-sheet against the appellant Satya Narain and two other accused persons, namely Kaluram and Mst. Guddi for offence under Sec. 302, 307/34 and 201, I. P. C. All the three accused persons denied the charges levelled against them and claimed trial. The prosecution in support of its case examined 15 witnesses. The accused appellant in his statement under Sec. 313, Cr. P. C. denied the correctness of the prosecution evidence appearing against him. He also stated that there is an open Kotha in his house without panels. He also stated that the deceased Balram had entered into an agreement to sell his land with one Chena Ram but it was objected by his brothers Bhagirath and Shera Ram and that led to a quarrel between them. A Panchayat had assembled in which Devilal, the father of the accused Kaluram. Surjaram also assembled. The compromise entered in the Panchayat was not accepted by the brothers of the deceased and, therefore, they gave him warning saying that they will settle the score with them. Thus in fact it was Bhagi Ram and Shera Ram who committed the murder of Balram and he has been falsely implicated. He also stated that his wife Mst. Guddi had gone to her parents house for delivery for about 1 1/2 months' back. The accused persons in support of their defence examined six witnesses. Analysing the evidence, the trial court found the prosecution case proved. The trial court held that the injuries inflicted by the accused appellant on the deceased Balram were so severe that there could be no other conclusion but that the appellant intended to commit the murder of Balram. In view of the finding the learned Judge convicted the appellant Satya Narain for offence under Section 302, I. P. C. and sentenced him to imprisonment for life. On reapprecication of evidence both the Hon'ble Judges constituting the Division Bench unanimously found the involvement of the appellant Satya Narain in the killing of deceased Balram. However the difference of opinion occurred with respect to the nature of offence. Mr. V. G. Palshikar, J. keeping in view the fact that the appellant was an exorcist to whom villagers used to regularly visit so as P. W. 6 Moduram and deceased Balram also visited him for redressal of their problem, they brought and consumed liquor as prasad of the deity and volunteered for recourse of lynching as a part of the black magic or exorcism concluded that no inference can be drawn against the appellant that he in assaulting Balram intended to cause death or cause such bodily injury sufficient in the ordinary course of nature to cause death. Palshikar, J. also found that while as per the medical evidence the cause of death was breaking of neck the appellant could not be held responsible for neck breaking on the basis of solitary and unconnected testimony of P. W. 6 Moduram. In the opinion of Palshikar, J the case was covered by exception (5) to Sec. 300. IPC as deceased Balram was above the age of 18 years, himself had given his consent to suffer death or atleast had taken the risk of his death by going to the house of the appellant for obtaining the benefit of prediction of his future life events after undergoing the rituals of Akhs Dikhana i. e. foretelling. The victim volunterely consented to be assaulted and had acted which resulted in his death. Accordingly, Palshikar, J. concluded that the appellant acted rashly, illegally and committed the offence of culpable homicide not amounting to murder punishable u/s. 304, IPC. On the other hand, Mr. R. R. Yadav, J. on re-appreciation of evidence on record found statement of injured eye witness P. W. 6 Moduram reliable being corroborated in all material particulars from the statement of P. W. 7 Om Prakash, P. W. 9 Mst. Savitri Devi and P. W. 10 Ramjas, further corroborated by post mortem report Ex. P/18, injury report Ex. P/19 and the statement of P. W. 11 Dr. Rajendra Kumar Gupta, Yadav, J. on elaborate discussion of the evidence upheld finding of the learned trial court that appellant caused injuries on the vital part of the body of the deceased i. e. hands, neck etc. , with such brutal force that each injury separately and both the injuries in their cumulative effect were sufficient in the ordinary course of nature to cause death. Accordingly, in the opinion of Yadav, J. the case falls under clause (3) of Sec. 300, IPC and as such held the appellant guilty of murder. Dealing with the exception (5) to Sec. 300 in the opinion of Yadav, J. in view of Section 105, Evidence Act the burden of proving the existence of circumstances bringing the case within exception (5) was on the appellant. But no such plea has been taken neither in the statement u/s. 313, Cr. P. C. nor any suggestion has been given by the defence to the prosecution witnesses pointing towards the circumstances to fall case under exception (5) to Section 300. Dealing with the possible circumstance, Yadav J. was of the opinion that barbarous unlawful act of tying hands and feet of the deceased Balram with rope, giving blow on the head by iron rod, twisting the neck cannot be said to be part of ritual of Akha Dikhna. Thus is the opinion of Yadav J. the trial court rightly held appellant guilty of murder of Balram. I have heard Mr. Kulwant Singh, learned counsel for the appellant and Shri Rajendra Vyas, Additional Advocate General for the State. It is contended by Mr. Kulwant Singh that in the facts of the case it is not possible to say that the appellant intended to cause death of Balram. It is submitted that he can at the most be clothed with the knowledge that the injuries which were being caused to deceased Balram were likely to cause death and as such it was an offence of culpable homicide not amounting to murder punishable u/s. 304 Part I, I. P. C. Thus the learned counsel has supported the view of Palshikar, J. On a court querry he submitted that he is not advancing argument if the act of the appellant falls under exception (5) to Sec. 300, IPC. According to Mr. Kulwant Singh the case of the appellant is squarely covered by the decision of the Apex Court in State of Madhya Pradesh vs. Shyam Sunder Trivedi (1) where in the identical circumstances the court found it to be a case falling u/s. 304 Part II IPC. On the other hand. Mr. Rajendra Vyas. learned Additional Advocate General has supported the judgment of the trial court and the view taken by R. R. Yadav, j. it is submitted that the act of the appellant falls under clause (3) of Sec. 300 IPC and as such the appellant Satya Narain is guilty of murder of Balram. he has placed reliance on Jai Prakash vs. State (2), Riyasat vs. State of U. P. (3), Bakhtawar vs. State of Haryana (4), Vishnu Daga pagar vs. State of Maharashtra (5), State of Haryana vs. Pala (6) and Bhakua Kampa vs. State of Orissa
(3.) IN the scheme of Penal Code culpable homicide is genus and murder is species. All murders are culpable homicide but all culpable homicides are not murder. Sec. 299, I. P. C. defines what is culpable homicide. To fall under the definition of culpable homicide u/s. 299, the act of the accused should cause death and it must be. (a) with intention of causing death, or (b) with intention of causing such bodily injury as or is likely to cause death, or (c) with the knowledge that the act is likely to cause death. Under Sec. 300, IPC except in the cases falling under exception (1) to exception (5) culpable homicide is murder if the act by which the death is caused is shown- Firstly, With the intention of causing death, Secondly, if it is done with intention of causing such bodily injury as the offender know to be likely to cause death. Thirdly, if it is done with the intention of causing bodily injury and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Fourthly, the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Thus to prove the charge of murder, the prosecution is required to establish if the case falls in any of the four clauses. Once it is established, it is further required to be seen if the case falls in any of the exceptions to Sec. 300. When a case falls under any of the exceptions the offence may amount to culpable homicide yet may not amount to murder. Such may be cases of culpable homicide not amounting to murder. For the purpose of fixing punishment, the court recognises three decrees of culpable homicide. The first degree is of culpable homicide defined u/s 300 IPC as murder which is the gravest form of culpable homicide. The second may be termed as culpable homicide of the second degree punishable u/s. 304 Part I, I. P. C. The third degree is the lowest type of culpable homicide punishable u/s. 304 Part II, I. P. C. Under clause (2) of Sec. 300, IPC it is only the intention of the causing bodily injury with the offender's knowledge of likelihood of such injury causing the death of particular victim is sufficient to bring the killing within the ambit of this clause. The intention to cause death is not essential. In clause (3) of Sec. 300 instead of the words "likely to cause" occurring in corresponding clause of Sec. 299 the words "sufficient in the ordinary course of nature" have been used. Thus distinction lies between bodily injury likely to cause death and bodily injury sufficient in the ordinary course of nature to cause death. Thus for cases falling under clause (3) it is not necessary that offender intends to cause death, so long as death ensues from the intentional bodily injury or injury sufficient to cause death in the ordinary course of nature. ;