BALU S/O ONKAR PUND & OTHERSversusTHE STATE OF MAHARASHTRA

                         [2015] 1 S.C.R. 970


A              BALU S/O ONKAR PUND & OTHERS
                                   v.
                  THE STATE OF MAHARASHTRA
                 (Criminal Appeal No. 175 of 2015)
                         FEBRUARY 2, 2015
B
      [DIPAK MISRA AND ABHAY MANOHAR SAPRE, JJ.]

          Penal Code, 1860: s. 302 rlw s. 149; 304 Part-I -
    Allegation that accused persons committed murder of PW-
C   3's wife - Prosecution case was that PW-3 had purchased land
    for cattle shed from A-1 - Later their relations became bitter
    and A-1 started pressurizing PW-3 to vacate the land - On
    fateful day, accused armed with weapons barged in the cattle
    shed and started removing the iron sheets fixed on roof -
D   Scuffle took place between PW-3 and accused persons - A-
    1 set fire on the cattle shed - Wife of PW-3 present in cattle
    shed caught fire - When PW-3 tried to save his wife, A-2
    inflicted axe blow on him - PW-3's wife succumbed to bum
    injuries - Conviction u/s. 302 by courts below - Held: It was
E   a fight on a spur of moment between the two male groups on
    the issue of taking possession of cattle shed with no intention
    to kill any one - Had the appellants not ablaze the cattle
    shed, the incident of death of PW-3's wife would not have
    occurred - In the absence of any overt act attributed to any
F   of the appellants towards the deceased for inflicting any injury
    to her, the appellants could not have been convicted for an
    offence of murder so as to attract the rigour of s.302 - Instead
    they are liable to conviction uls. 304 Part I.

        Partly allowing the appeal, the Court
G
        HELD: This is a case where the appellants should
    have been convicted for the offence punishable under
    Section 304 Part-I instead of Section 302 IPC. It is for the
    reason that firstly, neither there was any motive and nor
H                                 970
       BALU S/O ONKAR PUND v. STATE OF                    971
                MAHARASHTRA

any intention on the part of any of the appellants to            A
eliminate the wife of PW-3. Secondly, there was no enmity
of any kind with deceased in person with any of the
appellants. Thirdly, the appellants had gone there to take
possession of the cattle shed and not with an intention
to kill any member of the family of PW-3. Fourthly, if at all,   B
if there was some kind of animosity or jealousy then it
was towards A-1 whose panel had won the election. The
deceased had nothing to do with election because she
never contested tlie election. Fifthly, despite the
appellants armed with weapons, none of them inflicted            C
any injury or gave blow to the deceased but single blow
was inflicted only on PW-3, who fortunately survived.
Sixthly, the deceased died due to sustaining of burn
injuries, which she suffered because the appellants
ablazed the cattle shed by pouring kerosene on it. [Paras
18, 19 and 20) [979-G-H; 980-A-C, F]                             0

     Virsa Singh v. State of Punjab 1958 SCR 1495;
Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra
Pradesh (2006) 11 SCC 444: 2006 (4) Suppl. SCR 633 -
relied on.                                                       E
                   Case Law Reference:
    1958 SCR 1495                  Relied on         Para 15
    2006 (4) Suppl. SCR 633        Relied on         Para 17     F
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 175 of 2015.

    From the Judgment and Order dated 03.02.2014 of the
High Court of Judicature at Bombay, Bench at Aurangabad in       G
Criminal Appeal No. 225 of 2011

                            WITH

Criminal Appeal Nos. 166-167 and 164-165 of 2015.
                                                                 H
    972       SUPREME COURT REPORTS               [2015) 1 S.C.R.


A       Gopal Jain, Sudhansu S. Choudhari, Anish R. Shah, Shivaji
    M. Jadhav for the Appellants.

          Sushil Karanjkar, Aniruddha P. Mayee for the Respondent.

          The Judgment of the Court was delivered by
B
          ABHAY MANOHAR SAPRE, J. 1. These appeals are
    filed by the accused persons against the judgment and order
    dated 03.02.2014 passed by the High Court of Judicature at
    Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215
c   and 225 of 2011 which arise out of judgment/order dated
    11.04.2011 passed by the Sessions Judge, Parbhani in
    Sessions Trial No.80 of 2008.

      2. Accused Nos. 5, 8, 9 & 10 have filed appeal@ SLP(Crl.)
  No. 8715 of 2014 whereas appeals@ SLP(Crl.) Nos.10109-
D 10110/2014 are filed by accused Nos.1and4 and appeals@
  SLP(Crl.) Nos. 9524-9525/2014 are filed by accused Nos. 2,
  3 and 6.

       3. By impugned judgment, the High Court confirmed the
E conviction and sentences awarded to the appellants by the
  learned trial Judge. Suffice it to state here that the appellants,
  apart from other offences were convicted under Section 302
  read with Section 14~ of the IPC and sentenced to suffer life
  imprisonment and to pay fine of Rs.10,000/- each, in default of
F payment of fine, to undergo further six months rigorous
  imprisonment. The sentences imposed in respect of other
  offences are of below 7 years and all the sentences have been
  directed to run concurrently.

       4. The question, regard being had to the submissions
G advanced by the learned counsel for the appellants, is whether
  the learned trial Judge as well as the High Court was justified
  in convicting the appellants under Section 302 read with
  Section 149 IPC considering the genesis of occurrence and
  the facts in entirety or they should have been convicted under
H Section 304 Part-I, IPC.
      BALU S/O ONKAR PUND v. STATE OF                      973
   MAHARASHTRA [ABHAY MANOHAR SAPRE, J.]
    5. In order to appreciate the issue involved in these          A
appeals, it is necessary to state the relevant facts in brief.

      6. Apparao Rajaram Pund (A-1) and Madhavrao
Rangnathrao Range (PW- 3), both resident of village ltlapur in
District Parbhani, were good friends. Both were agriculturists.    8
Savitribai-the deceased was the wife of Madhavrao Range.
Around 25-30 years back, Madhavarao had purchased two
kathas of land from Apparao for his cattle shed in the same
village and he was also placed in its possession. However, no
sale deed was executed between them yet Madhavrao                  C
continued to remain in possession of cattle shed all through.

     7. In course of time, both entered in politics and formed
their respective panels to contest the elections for the post of
Sarpanch of the village. In the election, panel led by Madhavrao
Range won whereas panel led by Apparao Pund lost: Due to           D
this event, the relations between them were not as cordial as
they used to be in the past. Thereafter Apparao started
pressurizing Madhavrao Range to vacate the land and hand
over the possession of cattle shed else he was threatened to
face the dire consequences.                                        E

     8. On 15.01.2008, the appellants around 7.30 to 8.00 AM.
armed with weapons barged in the cattle Shed and started
removing the iron sheets fixed on the roof. Madhavrao
requested the appellants not to remove the sheets. Since the
appellants did not listen to Madhavrao and continued in their
                                                                   F
operation in removing the sheets; Madhavrao resisted and
made attempt to stop them. At that time, Savitribai and
Madhavrao's son - Udhav (PW -5), who were also present on
the spot, intervened and resisted the appellants from removing
the sheets. This led to scuffle between Apparao ( A-1), Sachin-    G
( A-4). Achyut (A-3) and Madhavrao (PW-3). Accused Nos. 1,
3 and 4 beat Madhavrao with fist blows and leg kicks and
threw him out of cattle shed. Apparao(A-1), who was having
bottle containing kerosene, poured the entire kerosene on
cattle shed and Sachin ( A-4) set the cattle shed on fire.         H
    974      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A Savitribai, who was resisting the appellants, caught in contact
  of fire and received severe burn injuries. On noticing this,
  Madhavrao tried to enter in cattle shed to save his wife-
  Savitribai. Gopal (A-2) then inflicted an axe blow on
  Madhavrao's head due to which he sustained bleeding injury.
B When Madhavrao cried for help, Navnath and other persons
  reached there and tried to extinguish the fire. Thereafter they
  wrapped Savitribai in a piece of cloth and took her to the civil
  hospital around 10 A.M.

       9. In the meantime, Mohammad Bashir Sheikh Umar (PW-
C 2)- Inspector on duty to the Nanal Peth Police Station, got an
  information that a lady with burn injuries was admitted to the
  Hospital. Therefore, he rushed to the hospital to record her
  statement. After getting certification from the doctors that
  Savitribai was in a fit condition to give her statement, PW-2
D recorded her statement (Ex-45). In the meantime, Kishore
  Achyut Deshmukh (PW-1 ), In-charge Tahsildar of the area also
  reached to the hospital and recorded the statement of Savitribai
  (Ex-P-42).

E        10. Annasahab Gholap -Assistant Police Inspector (PW-
   16) then registered the crime being Crime No. 6 of 2008 and
   started investigation. On the same day, five accused were
   arrested, panchnama (Ex-P-58) was prepared and several
   articles were recovered from the spot. On 16.01.2008 at 6.15
F a.m., Savitribai succumbed to her injuries while in the Hospital.
   This led to arrest of some other accused persons and also led
   to registration of case of offence punishable under Section 302
   of the Indian Penal Code, 1860 (hereinafter referred to as "IPC")
   along with other offences punishable under Sections 147, 148,
G 323, 324, 436, 440, 448, 506 all read with Section 149 IPC
   against the appellants and other accused persons. The case
   was then committed to Sessions for trial. The accused abjured
   their guilt and claimed trial. The prosecution examined 16
   witnesses. The statements of the accused persons were
 ' recorded under Section 313 of the Code of Criminal Procedure,
H 1973.
        BALU S/O ONKAR PUND v. STATE OF                          975
     MAHARASHTRA [ABHAY MANOHAR SAPRE, J.]
       11. The Sessions judge convicted the appellants-accused A
  and imposed punishment to each appellant as specified above.
  Challenging the said order, the appellants filed appeals in the
  High Court against their conviction. The High Court, by
  impugned judgment, dismissed their appeals and confirmed the
  conviction and sentence awarded by the trial Court to each of B
  the appellants. Against the said order, t.he appellants have
  preferred these appeals by way of special leave before this
  Court.

          12. While assailing the legality and correctness of the        C
    impugned order, Mr. Sudhanshu S. Choudhari, learned Counsel
    for the appellants has argued only one point. According to him,
    taking the prosecution case on its face value, it was not a case
    of murder of Savitribai so as to enable the Courts to convict
 i .the appellants under Section 302 IPC but it was a case falling
' . under Section 304 Part-I IPC. Learned counsel pointed out that       D
    there was neither any intention on the part of any of the
    appellants to commit the murder of Savitribai nor the appellants
    had visited the spot with any such intention. Learned Counsel
    further pointed out that the only intention of the appellants was
    to take possession of the cattle shed and it was in process of       E
    taking forcible possession, the sudden fight ensued between
    the two groups as also cattle shed caught fire causing burn
    injuries to Savitribai, which unfortunately resulted in her death.
    It was also pointed out that if the appellants had come to the
    spot with an intention to eliminate Savitribai, they or any          F
    member of their group would have in the first instance targeted
    Savitribai, who was present on the spot with her husband (PW-
    3) and inflicted injury. It was not done. According to learned
    Counsel, her death was as a result of burn injuries because she
    was inside the shed, which caught fire. Therefore, learned           G
    Counsel urged that this Court should alter the sentence to that
    of the one punishable under Section 304 Part-I IPC instead of
    under Section 302 IPC because it was not a case of murder
    but it was a case of culpable homicide not amounting to
    murder.                                                              H
    976       SUPREME COURT REPORTS                [2015) 1 S.C.R.


A         13. Per contra, learned Counsel for the respondent
    supported the impugned order and urged that two courts have
    rightly held the appellants guilty for committing murder of
    Savitribai and hence the appeals merit dismissal calling no
    interference.
B
        14. Having heard the learned Counsel for the parties and
    on perusal of the record of the case, we find force in the
    submission of the learned Counsel for the appellants.

         15. Before we examine the factual matrix of the case in
C   hand, it is apposite to take note of the law laid down by this
    Court on the question as to when culpable homicide is a murder
    under Section 300 "thirdly" and what are the elements which
    the prosecution should establish. This Court in Virsa Singh v.
    State of Punjab, 1958 SCR 1495, examined this issue in detail.
D
         16. The learned Judge Vivian Bose in his distinctive style
    of writing and speaking for the Court succinctly stated as under:
          "13. In considering whether the intention was to
          inflict the injury found to have been inflicted, the
E         enquiry necessarily proceeds on broad lines as, for
          example, whether there was an intention to strike at
          a vital or a dangerous spot, and whether with
          sufficient force to cause the kind of injury found to
          have been inflicted. It is, of course, not necessary to
F         enquire into every last detail as, for instance, whether
          the prisoner intended to have the bowels fall out, or
          whether he intended to penetrate the liver or the
          kidneys or the heart. Otherwise, a man who has no
          knowledge of anatomy could never be convicted, for,
G         if he does not know that there is a heart or a kidney
          or bowels, he cannot be said to have intended to
          injure them. Of course, that is not the kind of enquiry.
          It is broad-based and simple and based on
          commonsense: the kind of enquiry that "twelve
H         good men and true" could readily appreciate and
       BALU S/O ONKAR PUND v. STATE OF                     977
    MAHARASHTRA [ABHAY MANOHAR SAPRE, J.]

     understand.                                                   A
     14. To put it shortly, the prosecution must prove the
     following facts before it can bring a case under
     Section 300 "thirdly";
     15. First, it must establish, quite objectively, that a B
     bodily injury is present;
     16. Secondly, the nature of the injury must be proved;
     These are purely objective investigations.
     17. Thirdly, it must be proved that there was an
~


     intention to inflict that particular bodily injury, that is
                                                                   c
     to say, that it was not accidental or unintentional, or
     that some other kind of injury was intended.
     18. Once these three elements are proved to be
     present, the enquiry proceeds further and,             D
     19. Fourthly, it must be proved that the injury of the
     type just described made up of the three ~lements set
     out above is sufficient to cause death in the ordinary
     course of nature. This part of the enquiry is purely
     objective and inferential and has nothing to do with E
     the intention of the offender.
     20. Once these four elements are established by the
     prosecution (and, of course, the burden is on the
     prosecution throughout) the offence is murder under
     Section 300 "~hirdly". It does not matter that there F
     was no intention to cause death. It does not matter
     that there was no intention even to cause an injury
     of a kind that is sufficient to cause death in the
     ordinary course of nature (not that there is any real
     distinction between the two). It does not even matter G
     that there is no knowledge that an act of that kind will
     be likely to cause death. Once the intention to cause
     the bodily injury actually found to be present is
     proved, the rest of the enquiry is pt1rely objective and
                                                              H
    978       SUPREME COURT REPORTS              [2015) 1 S.C.R.

A         the only question is whether, as a matter of purely
          objective inference, the injury is sufficient in the
          ordinary course of nature to cause death. No one has
          a licence to run around inflicting injuries that are
          sufficient to cause death in the ordinary course of
B         nature and claim that they are not guilty of murder. If
          they inflict injuries of that kind, they must face the
          consequences; and they can only escape if it can be
          shown, or reasonably deduced, that the injury was
          accidental or otherwise unintentional."
C      17. Relying on the aforesaid principle of law, recently this
  Court in Pu/icherla Nagaraju @ Nagaraja Reddy Vs. State of
  Andhra Pradesh (2006)11 SCC 444, again examined the
  issue as to what relevant factors should be kept in consideration
  while deciding the question as to whether case in hand falls
D under Section 302 or 304 Part-I or Part-II. Justice Raveendran
  speaking for the Court held in para 29 as under:
          "29. Therefore, the court should proceed to decide
          the pivotal question of intention, with care and
          caution, as that will decide whether the case falls
E         under Section 302 or 304 Part I or 304 Part II. Many
          petty or insignificant matters - plucking of a fruit,
          straying of cattle, quarrel of children, utterance of a
          rude word or even an objectionable glance, may lead
          to altercations and group clashes culminating in
F         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
G         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
H         converted into offences punishable under Section
     BALU S/O ONKAR PUND v. STATE OF                         979
  MAHARASHTRA [ABHAY MANOHAR SAPRE, J.]

    304 Part 1111, or cases of culpable homicide not A
    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} B
    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 c
    fight or free for all fight; (VI) whether the incident
    occurs by chance or whether there was any
    premeditation; (vii} whether there was any prior
    enmity or whether the deceased was a stranger; (viii)
    whether there was any grave and sudden
                                                           0
    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 E
    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. Be that as it may."
                                                                     F
      18. Applying the aforesaid principle of law to the facts of
the case in hand and keeping the same in consideration when
we examine the evidence of the prosecution, we find that this
is a case where the appellants should have been convicted for
the offence punishable under Section 304 Part-I instead of           G
Section 302 IPC.
      19. It is for the reason that firstly, neither there was any
motive and nor any intention on the part of any of the appellants
to eliminate Savitribai. Secondly, there was no enmity of any
                                                                     H
    980        SUPREME COURT REPORTS               [2015) 1 S.C.R.


A kind with Savitribai in person with any of the appellants. Thirdly,
  the appellants had gone there to take possession of the cattle
  shed and not with an intention to kill any member of the family
  of Madhavrao Renge. Fourthly, if at all, if there was some kind·
  of animosity or jealousy then it was towards A-1 whose panel
s had won the election. Savitribai had nothing to do with election
  because she never contested the election. Fifthly, despite the
  appellants armed with weapons, none of them inflicted any injury
  or gave blow to Savitribai but single blow was inflicted only on
  Madhavrao, who fortunately survived. Sixthly, Savitribai died
C due to sustaining of burn injuries, which she suffered because
  the appellants ablazed the cattle shed by pouring kerosene on
  it. In other words, if the appellants had not ablazed the cattle
  shed then the incident of death of Savitribai would not have
  occurred. Eighthly, it was a fight on a spur of moment between
D the two male groups on the issue of taking possession of cattle
  shed with no intention to kill any one and lastly, in the absence
  of any overt act attributed to any of the appellants towards
  Savitribai for inflicting any injury to her, the appellants could not
  have been convicted for an offence of committing murder of
  Savitribai so as to attract the rigour of Section 302 IPC and
E instead they should have been convicted for an offence of
  culpable homicide not amounting to murder under Section 304
  Part I IPC.
        20. In the light of foregoing discussion, we .allow the
F   appeals in part. The appellants are accordingly convicted for
    an offence punishable under Section 304 Part-I IPC instead of
    Section 302 IPC and each of the appellants is hereby awarded
    7 years RI.
       21. So far as the conviction and sentence awarded by the
G courts below under various other sections, as specified above,
  are concerned, they are upheld calling no interference. All the
  sentences shall run concurrently.
    Devika Gujral                                 Appeal Partly allowed.

H