Ankush Shivaji Gaikwad vs. State of Maharashtra, Criminal Appeal No. __ of 2013 (Arising
out of S.L.P. (Crl.) No.6287 of 2011) (Decided on 03.05.2013)
In
this case there were exchange of hot words between appellant and deceased,
which in turn culminated in the deceased being hit with the rod on the head. No
sooner the deceased fell to the ground on account of the blow on the head, the
appellant and his companions took to their heels
The
question before the Hon’ble Supreme Court was whether the case would fall under
Section 304 Part I or Part II, IPC
The
Court noted following case laws in this respect:
Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC
648, the court held:
“..... For punishment under Section 304 Part I, the
prosecution must prove: the death of the person in question; that such death
was caused by the act of the accused and that the accused intended by such act
to cause death or cause such bodily injury as was likely to cause death. As
regards punishment for Section 304 Part II, the prosecution has to prove the
death of the person in question; that such death was caused by the act of the
accused and that he knew that such act of his was likely to cause death....”
Singapagu Anjaiah v. State of Andhra Pradesh (2010) 9 SCC 799
where this Court observed:
“16. In our opinion, as nobody can enter into the mind of the
accused, its intention has to be gathered from the weapon used, the part of the
body chosen for the assault and the nature of the injuries caused...
Basdev v. The State of PEPSU AIR 1956 SC 488, the court drew a
distinction between motive, intention and knowledge in the following words:
“....Of course, we have to distinguish between motive,
intention and knowledge. Motive is something which prompts a man to form an
intention and knowledge is an awareness of the consequences of the act. In many
cases intention and knowledge merge into each other and mean the same thing
more or less and intention can be presumed from knowledge. The demarcating line
between knowledge and intention is no doubt thin but it is not difficult to
perceive that they connote different things...”
Reg. v. Monkhouse (1849) 4 Cox C. C. 55 wherein Coleridge J.
speaking for the Court observed:
"The inquiry as to intent is far less simple than that as
to whether an act has been committed, because you cannot look into a man's mind
to see what was passing there at any given time. What he intends can only be
judged of by what he does or says, and if he says nothing, then his act alone
must guide you to your decision. It is a general rule in criminal law, and one
founded on common sense, that juries are to presume a man to do what is the
natural consequence of his act. The consequence is sometimes so apparent as to
leave no doubt of the intention. A man could not put a pistol which he knew to
be loaded to another's head, and fire it off, without intending to kill him;
but even there the state of mind of the party is most material to be
considered...”
Camilo Vaz v. State of Goa (2000) 9 SCC 1, the accused had hit
the deceased with a danda during a premeditated gang-fight, resulting in the
death of the victim. Both the Trial Court and the Bombay High Court convicted
the appellant under Section 302 I.P.C. This Court, however, converted the
conviction to one under Section 304, Part II, IPC. and observed:
“....When a person hits another with a danda on a vital part
of the body with such a force that the person hit meets his death, knowledge
has to be imputed to the accused. In that situation case will fall in Part II
of Section 304, IPC as in the present case...”
Kasam Abdulla Hafiz v. State of Maharashtra (1998) 1 SCC 526,
where the Court observed:
“....Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above the conclusion is
irresistible that the death was caused by the acts of the accused done with the
intention of causing such bodily injury as is likely to cause death and
therefore the offence would squarely come within the Ist part of Section 304
IPC. The guilty intention of the accused to cause such bodily injury as is likely
to cause death is apparent from the fact that he did attempt a second blow
though did not succeed in the same and it somehow missed..
Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra
Pradesh (2006) 11 SCC 444 where the Court enumerated some of the circumstances
relevant to finding out whether there was any intention to cause death on the part
of the accused. This Court observed:
“...Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide whether the
case falls under Section 302 or 304 Part I or 304 Part II. Many petty or
insignificant matters - plucking of a fruit, straying of a cattle, quarrel of
children, utterance 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. There may be no premeditation. In
fact, there may not even 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 there 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 pre- meditation; (vii) whether there was any prior enmity or
whether the deceased was a stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such provocation; (ix) whether it
was in the heat of passion; (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 several blows. The above list of
circumstances is, of course, not exhaustive and there may be several other
special circumstances with reference to individual cases which may throw light
on the question of intention...”
Jagrup Singh v. State of Haryana (1981) 3 SCC 616
Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652
Sarabjeet Singh and Ors. v. State of Uttar Pradesh (1984) 1
SCC 673,
Mer Dhana Sida v. State of Gujarat (1985) 1 SCC 200
Sukhmandar Singh v. State of Punjab AIR 1995 SC 583
On
the fact of the case the court held:
“We are of the opinion that
the nature of the simple injury inflicted by the accused, the part of the body
on which it was inflicted, the weapon used to inflict the same and the
circumstances in which the injury was inflicted do not suggest that the
appellant had the intention to kill the deceased. All that can be said is that
the appellant had the knowledge that the injury inflicted by him was likely to
cause the death of the deceased. The case would, therefore, more appropriately
fall under Section 304 Part II of the IPC.”
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