Illustrative cases :-
Stabbing a wife with aid of torch in the middle of the back with such force as to penetrate the spinal cavity - intention was held as to that of killing . (Ghasi Ram v. state , AIR 1952 MP 25)
Where accused set fire to the room where in which victim was sleeping and room was locked from outside , when villagers tried to help , they were prevented from helping . It was held that there was the intention to murder . (R. venkalu v. state of hyderabad(AIR 1956 SC 171)
If a person snatches weapon carried by someone else and brutally kills another , it cannot be said that he did not have any intention to cause death ; injuries were inflicted on vital parts of body and some of them were sufficient in ordinary course of nature to cause death . Whether accused had intention to cause death must be gathered from facts and circumstances of the case . (Nishan Singh v. State of Punjab AIR 2008 SC 1661)
Where medical evidence showed that injuries were of dangerous character . the fact that deceased remained alive for 12 days will be of no help to accused. (Sudarshan Kumar v. state AIR 1974 SC 2328)
The Public Prosecutor vs Mushunooru Suryanarayana Moorty on 2 January, 1912
The mens rea which is essential to criminal responsibility existed with reference to the act done by the accused in attempting to kill Appala Narasimhulu, though not in regard to the girl whose death he, in fact, caused, and that is all that the Section requires. It does not say "whoever voluntarily causes death," or require that the death actually caused should have been voluntarily caused. It, is sufficient if death is actually, even though involuntarily, caused to one person by an act intended or cause the death of another. It is the criminality of the intention with regard to the latter that makes the act done and the consequence which follows from it an offence.
Contributory action by deceased will also be of no help to the accused (in this case girl actually ate poisonous halva) For instance, if A. mixes poison in the food of B. with the intention of killing B. and B. eats the food and is killed thereby, A. would be guilty of murder, even though the eating of the poisoned food, which was the voluntary act of B., intervened between the act of A. and B.'s death. So here the throwing aside of the sweetmeat by Appala Narasimhulu and the picking and the eating of it by Rajalakshimi cannot absolve the accused from responsibly for his act. No doubt, the intervening acts or events may some time be such as to deprive the earlier act of the character of an efficient cause. Now, suppose in this case Appala Narasimhulu had discovered that the sweetmeat was poisoned and then gave it to Rajalakshmi to eat, it is to his act that Rajalakshmi's death would be imputed and not to the accused's. Or, suppose Appala Narasimhulu, either suspecting that the sweetmeat was poisoned or merely thinking that it was-not fit to be eaten, threw it away in some unfrequented place so as to put it out of harm's way and Rajalakshmi happening afterwards to pass that way picked it up and ate it and was killed, the act of the accused in mixing the poison in the sweetmeat could in that case hardly be said to have caused her death within the meaning of Section 299. On the other hand, suppose Appala Narasimhulu finding Rajalakahmi standing near him and without suspecting that there was anything wrong with the sweetmeat gave a portion of it to her and she ate it and was killed, could it be said that the accused who had given the poisoned sweetmeat to Appala Narasimhulu was not responsible for the death of Rajalakshmi? I think not.
Camila Vaz v. State of Goa (AIR 2000 SC 1374) - When accused persons Armed with danda , sticks and chains went to complainant for giving a sound beating only . No intention on the part part of accused to kill anyone was inferred. But when , accused hit the victim on head with danda on vital part of the body namely head with force , which caused death , though act was not done with intention to cause death , the knowledge was imputed to accused . In this case , conviction was under 304 part 2.
Accused on finding his parents were beaten , gave one gandasa blow to the deceased which resulted in death . Accused never had intention to kill , but was clothed with knowledge . He was held liable under 304 part 2 ( Sukhmandar singh v. state of punjab AIR 1995 SC 583)
Ramaotar V. state of MP AIR 1993 SC 302 - Fighting took place between two groups , mother (deceased) of one of person intervened . She was given a lathi blow on head and suffered injuries on ribs. It was held that injuries were not intended to cause death by the accused at all , however knowledge was imputed to them . They were held liable under Section 304 Part 2.
Ranjangam v. State of Tamilnadu (AIR 1993 SC 2636) - the accused inflicted single injury by knife on abdomen of deceased. Deceased was operated upon yet he succumbed to the injury due to gangrene . It was held that accused had knowledge that he was likely to cause death , keeping into account that he only caused one injury . He was convicted under 304 part 2 .
Ganesh Dooley (1879) 5 CAL 351
S , a snake charmer was exhibiting a poisonous snake in public whose fangs he knew had not been extracted . He put the snake on the head of one of the spectators , who while trying to push off the snake away from his head were bitten by it. He was held guilty of culpable homicide . As he had no intention to harm anyone.
However in Nga Ba TU (AIR 1921 L.B. 26) a snake charmer professed by tatooing to render a person immune from snake bite , to demonstrate he caused a poisonous snake to bite D whom he had tattooed but who died. It was held that burden of proving that accused was justified in believing the that he could give immunity was on him and he couldn't discharge the burden. He was held liable for murder ( 4th clause of section 300 applied on him).
In Abdul Waheed Khav. State of Andhra Pradesh
Appellants indiscriminately stabbed the deceased when their sole objective was to rob the deceased.
The Trial Court convicted three accused under Part I of Section 304 of the Indian Penal Code. The High Court, on an appeal by the State, convicted them for an offence punishable Under Section 302 of the Indian Penal Code. This Court discussed Section 300 (thirdly) of the Indian Penal Code, the object of the accused being to rob the deceased, the grievous injuries voluntarily inflicted on the deceased, the nature of injuries and then upheld the view taken by the High Court. The case did not directly concern Section 325 or Section 326 of the Indian Penal Code but was cited, firstly, to explain the analysis undertaken by this Court in its earlier decisions and secondly, to highlight that Section 299 of the Indian Penal Code takes care of every situation of culpable homicide and thirdly and most importantly, to illustrate that voluntarily causing grievous hurt resulting in death cannot be simply relegated to an offence punishable Under Section 325 or Section 326 of the Indian Penal Code. Supreme Court upheld the conviction under 302 clause 3.
In the case of Gudar Dusadh v. State of Bihar, AIR 1972 SC 952, one lathi blow was inflicted on the head which proved to be fatal. While upholding the conviction under Section 302 of the Penal Code, a three Judge Bench of this Court laid down the law and speaking for the Court, H.R.Khanna, J., observed thus at page 954:-
"The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force and resulted in a 3" long fracture of the left parietal bone. Ramlal deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause "3rdly" of Section 300, Indian Penal Code."
In the case of Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32, which is also a three Judge Bench decision of this Court, a single blow was inflicted on the chest with knife and the same proved to be fatal, as such conviction under Section 302 of the Penal Code was upheld by this Court. The Court while considering Clause Thirdly of Section 300 observed thus at pages 41-42:-
"Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."
In the case of State of Karnataka v. Vedanayagam, (1995) 1 SCC 326, accused inflicted a single knife blow on the chest resulting in instant death and the trial court convicted him under Section 302 but on appeal being preferred, the High Court of Karnataka altered the same to one under Section 304 Part II. When the matter was brought to this Court, judgment of the trial court convicting the accused under Section 302 was restored observing "there is no doubt whatsoever that the accused intended to cause that particular injury on the chest which necessarily proved fatal. Therefore, Clause Thirdly of Section 300 IPC is clearly attracted."
In the case of Mahesh Balmiki alias Munna v. State of M.P., 2000 (1) SCC 319, accused gave a single fatal blow with knife on the chest on the left side of the sternum between the costal joint of the 6th and 7th ribs, fracturing both the ribs and track of the wound going through the sternum, pericardium, anterior and posterior after passing the ribs and thereafter entering the liver and perforating a portion of stomach. There, conviction under Section 302 of the Penal Code was upheld by the High Court and when appeal was brought to this Court by Special Leave, while confirming the conviction under Section 302, this Court observed thus at pages 322-323:-
"Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him."
Supreme Court of India
Dhupa Chamar & Ors vs State Of Bihar on 2 August, 2002
A single blow by a bhala (spear) was given to deceased which ruptured major blood vessels resulting in instantaneous death. Accused was armed with deadly weapon. Supreme court upheld the conviction under section 302 .
Augustine Saldhana v. state of karnataka (2003) 10 SCC 472
Single blow by stick was given in on a dark night ,blow however landed on the vital part which resulted in death . The conviction in this case was altered to 304 part 2.
prahlad krishna patil v. state of maharashtra (2006) 9 SCC 211
Accused gave a single blow on the head with an iron rod , it proved fatal for the deceased. Medical evidence proved injury was sufficient in ordinary course of nature to case death. He was held liable under 302 .
In Rajwant Singh v. State of Kerala, the appellants had conspired together to burgle the safe of Base Supply office where a large amount of money was usually kept for distribution on pay-day. In the night they caught hold of the deceased who was the Lt. Commander. They covered his mouth with adhesive plaster and tied a handkercheif over it and plugged his nostrils with cotton soaked in chloroform. They has tied his hands and legs with rope and deposited him in a shallow drain. They were unable to burgle the safe and were recognised but they were succesful in runnig away. Next morning the dead body was recovered. The cause of death was asphysxiation. It was argued that the act did not constitute murder because the accused must have known that what they were doing was likely to kill. The intention was not to kill but to make them unconcious while they took away the money.
The court held that the case is covered by third clause of s. 300. All the acts were deliberate acts which were pre-planned and they thus satisfied the subjective test involved in the clause. Also the act considered objectively were sufficient to cause death in ordinary course of nature. The ordinary course of nature was not interrupted with any intervening act of another and whatever happened was the result of the acts of assailants and nothing else. It was hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result. The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the act.
Supreme Court of India
Ramesh Kumar vs State Of Bihar on 4 August, 1994
accused came armed with lathi knife and pistol to attack the deceased . Deceased was lonesome . Accused severely assaulted D by kicks and fist blows. Deceased died due to shock and hemorrhage. Court found that accused did not intend to cause death , had they did they woould have used pistols available with them. However, they could be imputed knowledge their conviction was altered to 304 Part II.
Emperor vs Mt. Dhirajia on 4 June, 1940
The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and when he reached a point close to the railway line he saw her making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury.
Court held --It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it is so imminently dangerous that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred-even a risk of the gravest possible character which must normally result in death-the taking of that risk is not murder unless it was inexcusable to take it.
So far as the convictions are concerned therefore, the result of the appeal is that the appellant's conviction under Section 302, I.P.C., is set aside and there is substituted for it a conviction under Section 304, I.P.C.
Supadi Lukadu v. Emperor (25) 12 AIR 1925 Bom 310. The case was a curious one in which a girl of 17 years of age, who too was ill-treated by her husband jumped with her baby into a well when she found that her husband prevented her from returning to her parents. In that case she was carrying the baby on her back and the learned Judges who tried it in the Bombay High Court on appeal came to the conclusion that on the facts of that case she was not aware at all that she even had a baby with her. She was convicted of death by negligence.
Madhya Pradesh High Court
Gyarsibai W/O Jagannath vs The State on 23 October, 1952
From the statement of Kaisar Bai and Narayan it is Clear that on the morning of the day oxfoccurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai, and during this quarrel when Kaisar Bai asked the appellant to leave the house, she left the house with her three children, saying that she would jump into a well. Kaisar Bai also admits that some times Jagannath used to give two or three slaps to the appellant for quarrelling with her. The other prosecution witnesses deposed to the recovery of the bodies of three children and to the rescue of the appellant. There is no eye-witness of the fact that the appellant jumped down the well herself together with her three children. But from the statements of Kaisar Bai, Narayan and the statement of the appellant herself before the Committing Magistrate and the Sessions Judge, I am satisfied that the version given by the appellant in her own statement is correct and that she jumped into the well herself along with her three children in order to escape harassment at the hands of her sister-in-law Kaisar Bai.
It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability, cause death, then the act is not murder as is defined in Clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed "without any excuse for incurring the risk of causing death or such bodily injury".
Every sane person - and in this case we are bound to take it that the appellant was sane - is presumed to have some knowledge of the nature of his act. This knowledge is not negatived by any mental condition short of insanity. The act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. There are no circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant's act of jumping into a well with her children. Accordingly she was held liable for murder.
Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. In that case, the accused assaulted his wife by kicking her below the navel. She fell down and became unconscious. In order to create an appearance that the woman bad committed suicide, he took up the unconscious body and, thinking it be a dead body, hung it by a rope. The post mortem examination showed that death was due to hanging. The Court, assumed that at the time he struck her be was not intending to cause death, and, I think, we may also take it that the injury was not in fact likely to cause death. The learned Judges say that as he thought it to be a dead body, he could not have intended to kill her if he thought that the woman was dead, and seem to assume that the intention to cause death is a necessary element in the offence of murder.
Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131. In that case it was found that the accused struck the deceased three blows on the head with a stick with the intention of killing him. The accused, believing him to be dead, set fire to the hut in which he was lying with a view to remove all evidence of the crime. The medical evidence showed that the blows were not likely to cause death and did not cause death and that death was really caused by injuries from burning. Mr, Justice Bird wood states the provisions of Section 299 and says, it is not as if the accused had intended, by setting fire to the shed, to make the deceased's death certain," and, therefore, acquits him of murder though be convicts him of an attempt to commit murder because of the accused's own admission that he intended by the blow to kill.
In Re: Palani Goundan vs Unknown on 7 April, 1919
Accused struck his wife with a ploughshare , she became unconsious . Believing her to be dead and in order to lay foundation for false defence , he hung her body by a rope . The wife died due to hanging . It was held :
It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. 'Causing death' may he paraphrased as putting an end to human life: and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man outs the head off from a human body, he does an act which he knows will put an end to life, if it exis's. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would not be guilty of culpable homicide. This is because, though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged, not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide, if his intention was directed only to what he believed to be a lifeless body. Accused was held guilty of grevious hurt and attempt to create false evidence .
Case where original intention was of murder:-
In Re: Kaliappa Goundan And Anr. vs Unknown on 3 May, 1933
Accused attempted to kill his wife by strangulation . She became unconscious , he dragged her body and placed it on the railway line and placed her in front of the train. She was actually killed by the train . Court held that accused was guilty of Murder under 302 IPC as both acts formed part of the same transaction.
Madras High Court
In Re: Thavamani vs Unknown on 29 March, 1943
The appellant here was the second accused prosecuted before the learned Sessions Judge of Ramnad for the murder of a woman named Meenakshi Achi on the evening of the 26th September last. The deceased was admittedly murdered in her flower garden about 1/1/2 furlongs away from the village. Her dead body was found on the 27th September in a well in the garden. Two persons were prosecuted for the murder. The first accused who was eventually acquitted, was the gardener employed in the garden. The second accused was an acquaintance of his, who was in need of money at the time. There is no direct evidence of the offence and there is no direct evidence from the post mortem certificate or the testimony of the doctor as to the cause of death. The body when found had marks of three punctured wounds upon the head; but those wounds by themselves according to the doctor would not be sufficient to cause death.
There is also a confessional statement made by the second accused before the Taluk Magistrate of Tirupattur. He explains how he was induced by the first accused to assist the first accused in the killing of the deceased. After the first attack had been made upon the deceased he (second accused) prevented her leaving the garden and then seized her legs and held her tight while, according to the confession, the murder was completed. After she had died the first and second accused threw the body into the well . The second accused was under a misapprehension when he thought that the deceased was dead and that the blows which the first accused with his assistance had struck at the deceased had not therefore caused her death. Whatever therefore may have been the intention of the accused in striking those blows that intention had not been effected. The action of the appellant and the first excused in throwing the body into the well could not possibly be in pursuance of an intention to cause her death as they already believed that she was dead.
in the present case it is clear that there was at the beginning an intention to cause death. This intention was apparently completely carried into effect but in fact was not. Even if the intention at the second stage of the transaction had been merely to dispose of a dead body,the two phases of the same transaction are so closely connected in time and purpose that they must be considered as parts of the same transaction. The result of the actions of the accused taken as a whole clearly is to carry out the intention to kill with which they began to act. Even if at the time when the woman was thrown into the well she was alive, and even if the appellant then thought her dead, he would be guilty of murder. The conviction of the appellant for murder must therefore stand. There are clearly no extenuating circumstances of any kind in this case and the sentence of death is the only one appropriate to the circumstances. We accordingly confirm the sentence and dismiss the appeal.
In Tholan v. State of Tamil Nadu [(1984) 2 SCC 133], the accused, who dealt a single knife blow on the chest found to be sufficient to cause death, was convicted under Section 304 Part II I.P.C., the Court disagreeing with the contention on behalf of the State that Clause III of Section 300 I.P.C would be attracted in such a case. In arriving at such a conclusion, this Court took into consideration various surrounding circumstances, including the fact that the accused dealt only one blow.
In Bhagwan Bahadure v. State of Maharashtra, [2007 (11) SCALE 519], this Court opined :
"It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered."
Hence, the mere fact that single blow was administered doesn't preclude the existence of intention.
State of Punjab v. Tejinder Singh & Anr. [AIR 1995 SC 2466]. There two persons inflicted Gandasa blows on the deceased. The altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties. The accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to hand pump to bring water in a pitcher. It was even in the aforementioned situation, this Court held :
"In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."
When Abduction Is Followed By Murder, Court Can Presume That Abductor Is The Murderer
Supreme Court of India (3 judges bench Justices R F Nariman, K M Joseph and V Ramasubramanian)
Somasundaram @ Somu vs The State Rep. By The Deputy ... on 3 June, 2020
While appreciating the evidence in the case, the bench applied the principle that in a case of murder followed by abduction, the abducter can be presumed to be the murderer.
"The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the prosecution", stated the judgment authored by Justice K M Joseph.
"Where abduction is followed by illegal confinement and still later by death, the inference becomes overwhelming that the victim died at the hands of those who abducted/confined him", the bench added.
RELIANCE WAS PLACED UPON THE FOLLOWING JUDGEMENT :
State of W.B. v. Mir Mohamad Omar (2000) 8 SCC 382 and Sucha Singh v. State of Punjab AIR 2001 SC 1436 in this regard.
In Sucha Singh, the judgment authored by Justice K T Thomas stated :
"when more persons than one have abducted the victim, who is later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc".
In these cases, the presumption under Section 106 of the Indian Evidence Act was applied to hold that it was the burden of the accused to prove otherwise in such cases.
On the facts of the case, the Court held that presumption of murder was rightly drawn against the accused
Murder , theft and robbery : Dharam Pal v. State of Haryana paragraphs 14 and 15 of the said judgment. The same reads as under:
“14. It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.
15. A criminal court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.” (Emphasis Supplied)
Supreme Court of India
Sonu @ Sunil vs The State Of Madhya Pradesh on 29 May, 2020
The Supreme Court has observed that, in a theft and murder case, it is not safe to draw the inference that the person in possession of the stolen property was the murderer.
In this case Sonu @Sunil vs State of Madhya Pradesh, the appellant was convicted for committing theft and murder. He was sentenced to death by the Trial Court. The High Court later commuted the death penalty and awarded life imprisonment.
The Court noted that the evidence against him essentially consists of the recovery of the mobile phone. It was also noted that there was a gap of about two months between the date of recovery and the date of incident.
The bench comprising Justices Sanjay Kishan Kaul and KM Joseph delineated the tests to applied in the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder).
The following are the 8-point tests laid down by the Court :
The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer
The nature of the stolen article;
The manner of its acquisition by the owner;
The nature of evidence about its identification;
The manner in which it was dealt with by the accused;
The place and the circumstances of its recovery;
The length of the intervening period;
Ability or otherwise of the accused to explain its possession
The Court referred to the precedent in the case Sanwant Khan and another v. State of Rajasthan AIR 1956 SC 54. As per this decision, the only presumption which can be drawn under illustration (A) of Section 114 of the Evidence Act with respect to a person found in possession of stolen property is that, he is either the receiver of the stolen property or has committed the theft of the property. It does not necessarily indicate that the theft and the murders took place at one and the same time.
"Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murdered", the bench quoted from Sanwant Khan
This was followed in decisions Baiju v. State of Madhya Pradesh AIR 1978 SC 522, Shri Bhagwan v. State of Rajasthan AIR 2001 SC 2342 etc.
The bench also noted that there was a discrepancy in the number of the phone stated to have been stolen from the deceased, and the number of the phone stated to have been seized from the accused.
Applying these tests to the facts of the case, the bench observed that it would not be safe to uphold the conviction of the accused and he would be entitled to the benefit of doubt.
What is the effect of recovery of the mobile proceeding on the basis that it belonged to the deceased? Section 114 of the Evidence Act with illustration (a) reads as follows:
“114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume—
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”
The scope of this provision has been considered by this Court on various occasions. In Sunder Lal alias Sundera v. State of Madhya Pradesh both the accused and deceased were seen together. After the alleged murder, the accused went with the article belonging to the deceased for pledging/selling it. In the circumstances, the Court took the view that the ornaments were established to be the ornaments worn by the deceased. No explanation was forthcoming how the accused came to be in possession on the very same day on which the alleged murder was committed. On this, the Court took the view that the conviction under Section 302 of the IPC, based on the circumstances, was correct.
On the other hand, in Sanwant Khan and another v. State of Rajasthan, one Mahant Ganesh Das, who was a wealthy person, used to live in a temple of Shri Gopalji along with another person. Both of them were found dead. The house had been ransacked and boxes and almirah opened. It was not known at the time who committed the offence. Investigation resulted in arrest of the appellant, and on the same day, he produced a gold khanti from his bara, where it was found buried in the ground. Another accused produced a silver plate. The Court found that there was no direct evidence. There were certain circumstances which were rejected by the Sessions Judge and the solitary circumstance was the recovery of the two articles. In these circumstances, the Court held, inter alia, as follows:
“Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.
xxx xxx xxx Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction.
It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our Judgment, Beaumonth, C.J., and Sen J. in – Bhikha Gobar v. Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.
xxx xxx xxx In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murdered. Suspicion cannot take the place of proof.
(Emphasis supplied)
In Baiju v. State of Madhya Pradesh, the Court held:
“14. The question whether a presumption should be drawn under illustration (a) of S. 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its 4 AIR 1978 SC 522 identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision.” That was a case where the Court found that prosecution had proved the case.
Supreme Court, in Shri Bhagwan v. State of Rajasthan held:
“11. The possession of the fruits of the crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found is the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self-inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands.
It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in a series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation.
Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed: (Para 13) “This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.”