Dhanraj vs State of Haryana

S.D. Bajaj, J.

In the evening around 8.30 P.M. on 12th May, 1987, while sitting outside his house in village Tajpur, Police Station Ateli, Distt. Narnaul of Haryana State, Ram Bhagat (now deceased) was talking to Hazari Lal Khati of village when accused Dhanraj the village barber, passed therefrom in a drunken condition. While passing, accused Dhanraj asked Hazari Lal to arrange a `Chilam'' for him and on his inaction to obey his command grappled with him. Ram Bhagat intervened and separated the two whereupon accused Dhanraj started abusing Ram Bhagat and went to his house muttering the abuses. In the meantime, Sher Singh, another village barber came there and abused Ram Bhagat in his anxiety to assure Dhanraj that he was not alone. Immediately thereafter, Dhanraj returned from his house nearby carrying a hockey stick with him and gave two blows therewith on the head of Ram Bhagat. Out of these two blows, one fell in the middle of his head and the other one of left side of his head. Ram Bhagat raised an alarm whereupon his younger brother Gobind Ram and Ram Niwas Ahir were attracted to the site and thereafter the accusedappellant Dhanraj ran away from the place of occurrence carrying the hockey stick, used by him as weapon of offence, with him. Injured Ram Bhagat was taken to the Primary Health Centre, Ateli, around 10.00 P.M. on 12th May, 1987. After being medicolegally examined therein, the patient was taken to Safdarjang Hospital, New Delhi, around 12 noon on 13th May, 1987,the following day and succumbed to the injuries therein around 6.45 AM on 17th May, 1987.

On being charged with the commission of offence under section 302 of the Indian Penal Code accused Dhanraj and for the commission of offence under section 302 read with section 34 of the Indian Penal Code both the coaccused in Dhanraj and Sher Singh pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 14th December 1987 learned trial court acquitted accused Sher Singh, Dhanraj accused alone was convicted of the commission of offence under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for it. Feeling aggrieved therefrom Dhanraj convicted accused has filed Criminal Appeal No. 3DB of 1988 in this Court.

We have heard Shri K. K. Aggarwal, Advocate, for the appellant, Shri Ram Avtar Singh, Additional Advocate General, Haryana, for the State and have carefully gone through the evidence on record.

Ocular account of the occurrence narrated by Gobind Ram PW7 and Hazari Lal PW8 in regard to the accused having given two hockey stick blows on the head of the deceased gets supported from the contents of medicolegal examination report Exhibit PA and the oral deposition of Dr. S. C. Goel PWl who states that the injuries detected by him on the person of the injured Ram Bhagat (now deceased could be caused with the hockey stick Exhibit P1, Dr. V. S. Yadav, Medical Officer General Hospital Narnaul. PW3 also asserted, "In our opinion death was due to coma as a result of compression of the brain caused by head injury which was sufficient to cause death in the ordinary course of life. All the injuries were antemortem."

The only question which crops up for consideration is whether the offence attributed to accusedappellant is murder covered by section 302 of the Indian Penal Code or culpable homicide not amounting to murder covered under section 304 of the Indian Penal Code. Relevant sections 300 and 304 of the Indian Penal Code read :

"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

2ndly 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

3rdly lf 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

4thly 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.

Exception I

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 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.

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.

Exception 3. Culpable homicide is not murder of 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 ant and without illwill 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 offenders 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.

Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment. for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused, is done with the intention of causing death or of causing such bodily injury as is likely to, cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to, cause such bodily injury as is likely to cause death."

The first paragraph of section 304 IPC applies to the offences of culpable homicide not amounting to murder if, the act by which the death is caused, is done(a) with the intention of causing death, or (b) with, the intention of causing such bodily injury as is likely to cause death. Case (a) will be culpable homicide not amounting to murder only if it falls'' within any of the exceptions to section 300, for, to otherwise, it would fail under the first clause of section 300 and would amount to murder. Part I of this section applies only acts done with the intention to cause death or such bodily to injury as was likely to cause death.

The second paragraph of the section which may referred to as part II applies to acts which are done without any intention to cause death or such bodily injury as is likely to cause death but which are done with the knowledge that they are likely to cause death. The difference between the two parts of this section is that under the first part the crime of murder is first established and the accused is given the benefit of the Exceptions under section 300 while under the second part the crime of murder is not established at all. Part I applies where there is guilty intention and Part II where there is no such intention but there is guilty knowledge. The knowledge referred to in Part II of this section is of lesser degree than the special knowledge referred to in the fourth clause of section 300. The question whether the accused had the knowledge that his act was likely to cause death is, as in the case of intention a question of fact depending upon the circumstances of the particular case the weapon used the part of the body on which the injury was inflicted, the number of injuries caused, the deliberateness of the act etc.

In this particular case, on the peculiar facts and circumstances, brought on record, accused can not be said to have the intention to cause death of the deceased or even of causing the deceased such bodily injury as was likely to cause his death. Under the influence of liquor, accused Dhan, Rai wanted to impress on Hazari Lal, Khati P.W. 8 that he was bigger higher than Ram Bhagat and that Hazari Lal should obey him instead of listening to Ram Bhagat. Since he has separated by Ram Bhagat while grappling with Hazari Lal, he went home and, brought the hockey stick so that Ram Bhagat may be deterred therewith from coming to the help or Hazari Lal. While wielding the hockey stick "accused Dhanraj however, must have know that blow therewith on the head of Ram Bhagat may even cause his death as well. This knowledge attributed to the accused brings his case under section 304 Part 11 of the Indian Penal Code. Conviction of accusedappellant under section 302 IPC and the sentence awarded to him for it are, therefore, both set aside and the accusedappellant is instead convicted of the commission of offence under section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years for it.

Except for the modification aforesaid, in the conviction of and sentence awarded to accused appellant Dhane Raj, there is no merit in the criminal appeal filed by him. The same is accordingly dismissed.