Criminal Appeal No,_/2018 1] BABURAO APPELLANT NO.1 2) SARJA sw APPELLANT NO2 -Son of Baburao 3] BHURAO APPELLANT NO3 -Brother of Bal Vs. 1] STATE OF MAHARASHTRA RESPONDENT FOROF NC CHARGED UNI SECTION 302 READ WITH SECTION #4 OF THI INDIAN PENAL CODE, 1860 UPON SUBN SSION TO THE HON’BLE HIGH COURT JUDG! WRITTEN SUEMISSIONS ON BEHALF OF THE RESPONDENT. COUNSEL APPEARING ON BEHALF OF THE RESPONDENT1. Babura (Appellant No. 1), an elderly farmer lived with his family consisting of his wife (Sumitra), son Sarja (appellant No. 2), daughter Sonali and brother Bhaurao (Appellant No. 3) 2. Vilas, a boy who lived in the same village was in love with Sonali, Baburao did not like Sonali’s closeness to Vilas and had publicly warned both Vilas and Sonali to stay away from each other. On several occasions he publicly scolded Sonali and asked her to refrain from meeting Vilas. 3. Bhaurao had borrowedRs. 10,000/- from Vilas and though he had promised to pay him immediately, he kept asking Vilas for time to repay the Rs. 10.000/- 4. On 12th June 2016, Bhaurao invited Vilas to collectRs. 10,000/-. Vilas reachedBaburao’s house around 8:30 pm, when the family had just finished their dinner. He saw Sonali from the window and signaled her to come into the backyard. Baburao, Bhauraoand Sarja on hearing whispers from the backyard went unarmed to investigate the matter. On seeing Vilas and Sonali together,Baburaolost his temper, asked Sonali to return to the house and started abusing Vilas. Vilas replied back and there was a heated argument between them. During the course of the argument, Sarja went into the house and brought Baburao’s walking stick and gave blows with the walking stick on the leg of Vilas. Bhaurao grabbed the walking stick and started beating Vilas and gave blows on Vilas’shead and chest.5. Vilas was taken to the civil hospital by the villagers, where he died four days later, The Post-mortem report confirmed that Vilas haddied due to injuries suffered by him on his head and due to fracture of two ribs. However, none of the injuries independently were sufficient to causeVilas’s death while they cumulatively were sufficient in the ordinary course of nature, to cause his death. 6. The First Information Report was registered under section 307 r/w section 34 of the Indian Penal Code 1860, and after the death of Vilas, the charges were altered to section 302 r/w Section 34 Indian Penal Code, 1860. 7. The Sessions Court convicted the three Appellants under section 302 r/w section 34 & sentenced them to life imprisonment for having committed the murder of Vilas. 8. Agerieved and dissatisfied by the judgment of conviction passed by the learned Trial Judge, the Appellants have preferred the present appeal.STATEMENT OF ISSUES A. Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal Code, 1860? B. Whether the nature of injuries and the nature of the weapon, was such as to cause death of a person? C. Whether the act of the deceased amounted to grave and sudden provocation?DETAILED PLEADINGS 1] Whether the Appellants can be prosecuted u/s 302 r/w section 34 of the Indian Penal Code, 1860? 1.1] The counsels on behalf of the respondents humbly submits that the order passed by the Sessions Court of sentencing the accused for imprisonment for life for his offence committed under section 300 and punishable under section 302 of IPC is appropriate. 1.2] Dhe conditions of section 300 of IPC have been satisfied — The accused has committed the offence of murder because act done by him falls under the definition of Murder as defined in Section 300° 2: act and knowing that the act thus committed is so imminently dangerous that it will in all f IPC. The present case comes under the 4", a clause of the said section. Clause 4 of the Section talks about a person committing any probability cause death or bodily injury as is likely to cause death and that person commits the act without any excuse for incurring the risk of causing death or such injury aforesaid.’ 1.2.1] The essential ingredients of this clause are* — (a) The act must be nminently dangerous, (b) The person committing the act must have knowledge that it is so imminently dangerous, As per the Oxford Dictionary, the word knowledge means: ‘Acquaintance with afa 1, perception, or certain information of a fact matter; state of being award or informed; consciousness (of anything).”* For practical and legal purposes, ‘knowledge’ means the state of mind entertained by a person with regard to existing facts which he has himself observed, or the existence of whi has been communicated to him by persons whose veracity he has no reason to doubt.”(c) That in all probability it will cause~ either Death or Bodily injury as is likely to cause death and; (d) Such imminently dangerous act should be done without any reason or justification for running the risk of causing death or such injury. 2 Supra Note 7 3 Ibid, clause 4. 4K1VIBHUTE, PSA PILLAI’S CRIMINAL LAW, LEXIS NEXIS PUBLICATION, P-582 5 Justice C.K.Thakker, ‘Encyelopaedie Law Lexicon’, Volume Il, Edn.2010, ASHOKA LAW HOUSE, p-2568 6 Ihid -10-1 2] This present act of the accused blow on the head and chest by the stick shows that the person had the knowledge that the act is so imminently dangerous that in all probability it will cause death.’ The accused invited the deceased on the date of 12" June 2016 to collect Rs.10,000/ which is appellant no3 borrowed from the deceased, Accused invited deceased around a 8.30 pm on the house of Appellant nol when the all family had just finish their dinner At that time deceased and daughter of appellant no.1 go to the backyard to the house and they talk to each others. The appellant not did not like his daughters closeness to deceased thats why the a ised has angry and cruel intention towards the deceased, On 12" June 2016 there is accused clearly intention that to call deceased on around 8.30pm at Appellants no 1 house for the purpose for giving 10,000/- which was give by the Appellant no3. As per this situation clearly denoted that it’s a pre mind plane to call him and harm full bodily injury to deceased as like to death, Now the council for respondent submitted that such a pre mind plan was fulfils the condition of the Clause 2,3& 4 of Section 300 of IPC and brings the act of the accused under the definition of Murder. 1.2.3] Held since no special knowledge is needed to know that one may cause death by blowing stick on the head and chest of a person it is obvious that the accused must have known that he was running the risk of causing the death of the victim or such bodily injury as was likely to cause her death, As he had no excuse for incurring that risk, the offence must be taken to fall within 4" clause of section 300, Penal Code. In in other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death.”1.2.4] In the case of State of M.P. v. Ram Prasad the Hon'ble Supreme Court held that this was the case where it was difficult to find the intention of the accused. But then the Supreme Court observed that in respect of the clause 1-3 of Section 300 of IPC, the question would rise as what was the intention of the accused, the nature of injuries he intended to cause ete. Then the Supreme Court opined that it would be simpler to place reliance on Clause 4 because it contemplates only ‘knowledge’ and no intention. In this case, when the accused blowing by stick on head or chest of deceased, he must have known that the act would result in her death.” This knowledge is sufficient to bring the act of the accused under the Clause 4, Section 300. 7 Supra Note 9 8 State of MP. v. Ram Prasad AIR 1968 SC 881 9 AIR 1968 SC 881 sideIn matter of Pillu Prahlad V. State of Madhya Pradesh, Appellants have preferred appeal challenging their conviction and order of sentence passed by Additional Sessions judge Appellants have been convicted under Sec.302/34 of ipe for committing murder and sentenced to life imprisonment with fine of Rs.3,000/- each, in default rigorous imprisonment for six months, by the impugned judgment. In view of the forgoing discussion, and the evidence available on record against both the appellants, the High court of Madhya Pradesh considered opinion, that the trial court rightly convicted the appellants under Sec.302/34 of P.C and Appeal fails and is dismissed.’ The Council for respondent submitted that at present matter the appeal challenged u/s 302 r/w34 of ipe is not correct and such appeal is viod ab intio. Because As the accused had the knowledge that doing this act is imminently dangerous and it will lead to either the death or such bodily injuries which may lead to death of the victim then it sufficiently fits in the scene and provides a ground to convict the accused 1.2.5]The High Court of Karnataka In Matter of Saibanna Tippanna And Ors, vs Unknown on 2 March, 1965 under in this case Accused 1, 2, 3 and 6 who were convicted by the Sessions Judge of Gulbarga of an offence of lurking house trespass punishable under Section 457, and, of an offence of murder punishable under Section 302 read with Section 34 of the Penal Code, and, who were sentenced (o rigorous imprisonment for a period of four yea for the first offence and to imprisonment for life for the second, are the appellants before us. In this case the witness clearly of the opinion that all the injuries were ante-mortem injuries and that the lacerated wounds must have been caused by blunt weapons such as the butt end of an axe or sticks, and that the incised injury might have been caused by a sharp weapon like sword or dagger. A cording to him the injuries which were on the face were sufficient in thesword or dagger. According to him the injuries which were on the face were sufficient in the ordinary’ course of nature to cause death .As per the High Court of Karnataka the sessions Judge was right in concluding that Deceased was killed by accused | to 3 and 6 in furtherance of the intention of all of them and that they were therefore, guilty of the offence punishable under Section 302 read with Scction 34 of the Penal Code & appeal was dismissed. Hence council for respondent submitted that in present matter there is blow on head and chest by the stick is suitable weapon used for injury to human body as like to death and appellant has prosecuted u/s302 r/w34 of the Indian Penal Code 1860.In another case Murugan vs State in that case, “The charge against the accused is that due to family dispute, with the common intention to murder the deceased Krishnan, on 30.1.2001 at 7.00 p.m. at Karamalaikadu Kanjalam, near the house of Krishnan, the accused 2 and 3 beat Krishnan on his head with sticks, the first accused slapped him on his left cheek and the 4th accused kicked him with leg and caused grievous injuries as a result of which the deceased died in hospital next day at 12.30 p.m. and thereby, committed the offence punishable under Section 302 read with 34 LP.C. Thus madras high court state that its was covered under the section 300 and punishable u/s 302 read with sec34. In the case Mohmed Amanat Mohmed Hasim Ansari Vs. State of Maharashtra mention that in view of the nature of weapon, i.c., stick and the blow given on the head, it could be inferred that he had intention of causing such bodily injury as was likely to cause death and its come amounting to murder. Hence the council for respondent submitted here that such act which is blow on head and chest of deceased is come under the section 300 and prosecuted under sec 302 r/w 34. Such punishment given by the session judge is correct because accused has clearly intention of injure the body as like to death and he knows that such a act was bodily injure some one and it amounting to death as well. In the case of State of M.P v. Ram Prasad the Hon*ble Supreme Court opined that it would be simpler to place reliance on Clause 4 of section 300 because it contemplates only ‘knowledge’ and no intention in present case the accused has knowledge that blow by stick on head is cause to death.1.3] If there was no intention to kill, then it can be murder If there was no intention to kill, then it can be murder only if death or death or a) The accused knew that the injury inflicted would be likely to caus b) That it would be sufficient in the ordinary course of nature to caus c) That the accused knew that the act must in all probability cause death.'” 1.3.1 ]In this case the accused had intention to kill as well as accused knew that the act must in all probability cause death, so he doesn’t have any chance to run from his en here in the mind of accused by the act liability. Both knowledge and intention can be s he has done. 1.3.1 ]In order to hold a person responsible for having caused the death, it is not necessary that his act should be the immediate cause of death, in the medical sense. If accused has L0Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116. -13-caused injuries then he is liable for murder.'' And in the present case the accused had caused sufficient injuries to hold him responsible for the act. Intention of Accused. a)"In the present analysis of the mental element in crime, the word ‘intention’ is used to denote the mental attitude of a man who has resolved to bring about certain result if he can possibly do so. He shap\ s his line of conduct so as to achieve a particular end at which he aims.” On 12/06/2016, there were only 5 people present in the house, Baburao( Appellant No 1),Sumitra (wife of Appellant nol), Son Sarja (Appellant No 2) , Daughter sonali and Brother Bhaurao (Appelant No.3). At around 8.30pm Appellant No 3 call deceased at house of Appellant No 1 for collecting Rs.10,000/- which taken by Appellant No 3 from deceased few days back. The admitted facts here are that the appellant and the deceased were not having good relations and they often quarreled with each other because Appellant No 1 did not like deceased closeness with his daughter. This clearly shows that as the Appellant was not happy with the relations between vilas and sonali. On 12 june 2016 which was happened itis like pre plan because vilas has call on the house of Appellant NoI that time the appellant No 3 so present in the house and appellant no 3 is brother of appellant no 1 than all accused are cause injury to the diseased with the common intention. The deceased was mercilessly given blows on his head and chest and on hearing the hue and cry, villagers came to the scene who were the witnesses and found Bhaurao giving blows to Vi las while the other two were shouting abuses on Vilas. Vilas was bleeding from the head and became unconscious. So the present circumstances clearly show that the act of killing her has been commissioned by the accused.1.2.2] Actus Reus of Accused — Actus Reus means a ‘wrongful act’ and is a legal maxim.'* The term may be so defined as to include accts of omission as well as acts of commission, and a person may incur criminal liability for failing to do that which the law enjoins as much as by doing that which the law proscribes."* The admitted facts here are that the appellant and the deceased were not having good relations and Bhaurao had no means to repay his debt for which he always showed 11 Kumbhar Narsi Bechar v. The State, AIR1962Guj77. 12 Russell on Crime (12° Edition at page 41) mentioned in Justice C.K. Thakker’s, Eneyclopaedic Law Lexicon, Volume I, Edn.2010, p-2381 13 Justice C.K. Thakker’s, Encyclopaedic Law Lexicon, Volume Il, Edn.2010, p-141 14 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume Il, Edn.2010, p-141. See Halshury’s Laws of England, 4° Ed., Vol.11, p-13. -14-helplessness. On the other hand, Vilas was in love with Sonali and used to meet Sonali on the weekends when her father was not at home on the pretext that he had come to collect the money. Baburao did not like it and told Vilas many a times not to meet to sonali, He also scolded his daughter for meeting Vilas but Vilas did not stop visiting Sonali. The accused were already fed up with the regular tense atmosphere and more annoyed by seeing Vilas talking to Sonali in the backyard of their house. Baburao lost his temper and started abusing Vilas. Sarja brought a lathi/Stick from inside and gave a blow to Vilas on the leg. Then Bhaurao grabbed the lathi/Stick from Sarja and started beating Vilas mercilessly giving blows on his head and chest. On hearing the hue and cry, other villagers came to the scene, They found Bhaurao giving blows to Vilas while the other two were shouting abuses on Vilas. Vilas was bleeding from the head and became unconscious. He was taken to the hospital by the villagers where he died four days later without regaining consciousness. In the instant case, the accused persons had the knowledge that fiving blows on head and chest would lead to Vilas’s death as a consequence of his imminently dangerous act and he still committed the act. The accused would be liable for the offence of murder though there was not pre-meditation of the act. So the act of murder would be punishable under the section of 302 “of IPC. The post-mortem report confirmed that Vilas suffered injuries on the head and fractures of three ribs. There were many concussions on different parts of his body. There was much loss of blood. While none of the injuries independently was sufficient to cause death, the cumulative result was sufficient in the ordinary course of nature to cause death, This proves that accused persons have committed the offence of the Murder.For the act done by the accused he must be punished. The act committed by the accused persons comes under the Section 302'° of Indian Penal Code. The said section prescribes the punishment for murder. In the present case, accused has committed the murder of Vilas (as proved above) and for this they are liable under Section 302. In the Section 302 the punishment prescribed is either death sentence or life imprisonment. Here, as the case doesn’t fall under the purview of rarest of the rare case, so death penalty cannot be imposed, hence the option left is life imprisonment. "Life imprisonment to the accused is completely justified if we go as per the grounds mentioned above, 15Supra note 13. 16 Supra Note 5 17 Supra Note 8, p-84 -15-2| Whether the nature of injuries and the nature of weapon, was such as to cause death of a person ? The Council on behalf of the respondent submitted here that the nature of injuries and nature of weapon is cause injury as like to death and accused has punishable under sec 302 read with section 34. -16-‘MEMORANDUM FOR RESPONDENT 2.1] Historical background of weapon — Council submitted here the definition of weapon and murder as under- -Murder- The crime of unlawfully killing a person especially with malice a forethought, something very difficult or dangerous, something outrageous or blameworthy, to kill (a human being) unlawfully and with premeditated malice, to slaughterwantonly : slay to put an end -Weapon- Something (such as a club, knife, or gun) used to injure, defeat, or destroy, a mean of contending against another. Historical background of weapon — Humans have used weapons in warfare, hunting, self-defense, law enforcement, and criminal activity for thousands of years. Weapons also serve many other purposes in society including use in sports, collections for display, and historical displays and demonstrations. As technology has developed throughout history, weapons have changed with it. Major innovations in the history of weapons have included the adoption of different materials ~ from stone and wood to different metals, a nd modern synthetic materials such as plasties — and the developments of different weapon styles either to fit the terrain or to support or counteract different battlefield tactics and defensive equipment.2.1.1] Stick as a weapon — The singlestick itself is a slender, round wooden rod, traditionally of ash, with a basket jill. Singlesticks are typically around 36 inches (91 cm) in length and 1 inch (2.5 em) in diameter and thicker at one end than the other. It bears approximately the same relationship to the backsword as the foi] to the small sword in being a sporting version of the weapon for safe practice. The original form of the singlestick was the waster, which appeared in the 16th century and was merely a wooden sword used in practice for the backsword, and of the same general shape. By the first quarter of the 17th century wasters had become simple clubs known as cudgels with the addition of a sword guard. When the basket hilt came into general use about twenty five years later, a wicker one was added to the singlestick, replacing the heavy metal hilt of the backsword. -17-‘MEMORANDUM FOR RESPONDENT By the turn of the 19th century, the target area had been restricted to the upper body (with the exception of the back of the head) and the upper part of the forward leg. As per the history the under the fight of stick the rule is that there is not allowed the fight on the part of head and chest of body because its a cause death of the person, Than in present case the stick was used for the injure as like to death is punishable under sec 302 and stick is come under the blunt weapon. 2.1.2] In the case of Gundya Yellappa Arote And Others Vs, State of Maharashtra under this case the stick recover under as a weapon and weapon was sized under the punchnama. In Bharwad Jakshibhai Nagribhai And Others stick as defined deadly weapon and court held that when the weapon was used as like to death it is another case State of Gujarat Vs come under the preview of see 300. There is another case Bhanu and others vs. State of Madhya Pradesh in this case Gathered more than five persons arm with firearm, betel axe and sticks itself is sufficient to infer that the persons have gathered with definite object and their object was to kill the person by use of firearm and other dangerous weapons. In case of assault by firearm dangerous weapons betel axe and stieks, it would be possible for the person who is also received injury or whose husband/relatives are receiving injury and ultimately they died to deseribe the details of injury, details of weapons used and part of the body effected, Than high court of chattisghra held that the weapon which is used ie stick it was harmful to the human body than it is come under the sec 300.2.2] The weapon used i.e stick is injure as like to Death- The council on behalf of the respondent side the situation in which sa rja went inside the house and brought stick is a certain kind of weapon this act can’t be seen under Culpable homicide . As in culpable homicide or in certain provocation or anger the tree Appellant may used there arms and fest or kick the deceased but in this ituation the appellant beat the Vilas. with stick. Your hordship the permission of stick is only given to the police and only police can do lathi charge with senior permission excluding police and security personals no other individual cas used stick for fight . Council also like to mentioned that if the arguments aginst the appellant is of sudden provocation and anger . The Applicant no 2 Sraja might also bring ans Axe or Knife if he want gate stick at that particular movement or particular situation Henceforth it is humbly request to the court not to differentiate between stick and other sharp weapon like Knife as both are household instruments -18-Anger and sudden Provocation Council on behalf of the respondent submitted that anger and sudden provocation is the nature of human Minds in this case the anger and sudden provocation is barely seen. If the three applicants where under the phase of anger and sudden provocation. They would have harmed the vilas with any other object they would gate in their hand in first instinct . But in this situation there was distance between the sarja and stick this situation can’t be counted with section 299 exception IV . If the situation happened in backyard of house and if sarja would beat the Vilas with the stick as the instrument first found to Sarja the situation would be U/s 299 of IPC but after seeking the Vilas and Sonali together and after certain talk Sarja went inside house to find certain weapon which he got the stick and the applicant killed the vilas Hence it is holy planed murder which is guaranteed under Sec.300 Post- Mortem Report Council here submitted that the post mortem report by medical examination confirmed that Vilas had died due to injuries suffered by him on his head and due to fracture of two ribs. The injure sustained to vilas on head and chest due to collectively blow on his leg, head and chest by the stick and continue to beat to Vilas. Than council for respondent submitted here that the collectively beating to vilas is cause to death is sufficient in nature3] Whether the act of the deceased amounted to grave and sudden provocation? The Council on behalf of the respondent humbly submitted that the act done by the deceased vilas should not amount to grave and sudden provocation. -19-Baburao the father of sonali had taken wrong meaning regarding the relation between the sonali and vilas even though it has been ment many time scolded sonali & vilas of meeting each other but your lordship sonali & vilas never been caught in such situation (Phys cal) except of talking with each other. And on the other side it should also been taken under consideration that the baburao had invited vilas at that place vilas has himself not gone to sonali house and the mentality of the vilas might be like to meet Sonali at last before taking mony hence he might have decided to call her backyard and condition to call her in front of here father brother & uncle can defiantly cause anger, 3.1] Grave and sudden provocation- in to the accused which would “Provocation is some act or series of acts done by the dead ma in the a cause in any reasonable person and actually caus uused a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment not master of his mind” It is well established principle of law that every act or conduct which is excused in the name of grave and sudden provocation is not consider as mitigating factor to criminal liability. The substantive provisions of the Indian Penal Code defines the particular circumstances when the plea of the grave and sudden provocation is exist but not in all other cases The criminal law is based on the idea that every culprit is punished a ‘ording to his guilt. So for ible under law. s the every act which is against or contrary to laws must punisha In the facts of the case the vilas call on the house of baburao how is father of sonli and no about the relation between vilas and sonali and its is clearly premeditation or preplain to make injure to vilas and completely remove on his daughters life.3.2] Exceptions of the Section 300 of Indian Penal Code: * Provocation; + Exceeding right of private defence; + Public servant exceeding his powers; + Sudden fight; * Consent. As we seen the exception of Section 300 it was not applicable in the present case because as. we seen the fact there is clearly denoted it is pre play plain to cause death of vilas: -20-Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304, When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court. In Abdul Waheed Khan y. State of A.P., (2002) 7 SCC 175 It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.