For law students, lawyers, Judges as also those who having an active interest in law, it would be of considerable importance to go through the learned, laudable, landmark and latest judgment titled Mohd Rafiq @ Kallu Vs State of Madhya Pradesh in Criminal Appeal No. 856 of 2021 that was pronounced finally on September 15, 2021 wherein the Apex Court has clearly explained the difference between culpable homicide under Section 304 of the IPC and murder under Section 300 IPC. It has cited relevant case laws to back up the difference between the duo which shall be discussed in detail later on. The Bench of Apex Court comprising of Justice KM Joseph and Justice S Ravindra Bhat observed quite clearly that:
The difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.
To start with, this learned judgment authored by Justice S Ravindra Bhat for himself and Justice KM Joseph of the Apex Court sets the ball rolling by first and foremost narrating in para 1 that:
The appellant is aggrieved by a judgment of the Madhya Pradesh High Court (Dated 27.02.2018 in Crl. A. 1570/1995) which confirmed his conviction for the offence punishable under Section 302 of the Indian Penal Code (IPC), and the sentence of rigorous imprisonment for life imposed on him.
While elaborating on the facts of the case, the Bench then enunciates in para 2 that:
The facts are that Police Station Jabera received information in the evening of 09.03.1992 that a truck (CPQ 4115) had broken the Forest Department barrier and collided with a motorcycle. The receipt of this information (by means of telephonic conversation) alerted the police. It was further alleged that Sub Inspector (SI) D.K. Tiwari along with others were stationed at a vantage point, on the main road, when the truck reached there. SI Tiwari motioned the truck to stop; it was driven by the appellant. Instead of applying brakes, the accused tried to speed away, upon which SI Tiwari boarded the truck from its left side. At that stage, it is alleged that the accused/appellant warned SI Tiwari not to do so and that he would get killed. Nevertheless, SI Tiwari boarded the truck. Immediately, the appellant pushed him, as a result of which SI Tiwari fell off the truck and he was run over by the rear wheels of the truck. SI Tiwari died. It is further alleged that the appellant fled with the truck. He was later caught, arrested and charged with committing murder of SI Tiwari.
To put things in perspective, the Bench then enunciates in para 3 that:
In the trial before the Addl. Sessions Judge, Damoh, the prosecution relied upon the depositions of 18 witnesses, besides several exhibits, including the postmortem report, seizure of articles from the site and the deposition of medical witness (PW-6). The prosecution essentially relied upon the statements of PW-2, PW-10, PW-11, PW-14 & PW-15, i.e. the principal eye witnesses. The accused also led oral evidence of three witnesses, including that of Majeed, DW-1, who deposed that he was the conductor who was in the truck when the incident had occurred.
As it turned out, the Bench then points out in para 4 that:
After duly considering the entire evidence and materials led before it, the Trial Court, by its judgment and order (Dated 04.11.1995 in SC 123/1992) convicted the appellant as charged and sentenced him to rigorous imprisonment for life. The appeal against the conviction and sentence was rejected by the impugned order.
Analysis and Conclusions
Simply put, the Bench then lays bare in para 9 that:
Having carefully considered the record, the evidence of the trial court and the High Court, as well as the contentions made before this court, the only question which arises is as to the precise nature of the criminal liability of the appellant. There can be no serious dispute about the occurrence of the incident; all the eye witnesses – especially PW-2 deposed about the receipt of information about a speeding truck which had run through a Forest Department barrier and which was also involved in an incident with a motorcycle. SI Tiwari was alerted about this information and therefore positioned himself along with a few others, on the road. The evidence also discloses that the incident occurred in the close vicinity of a police station. By the side of the police station, there was a medical store.
The incident apparently occurred at 09.45 P.M. according to the eye witnesses; in any case, the copy of the First Information Report reveals that it was recorded at 10:10 PM; it reflects the time of the incident to be 9:50 PM. There is some contradiction between the statements made during the investigation by the prosecution witnesses about the source of light: PW-2 admitted that he had not mentioned about any light and that he deposed about it for the first time in court and that he could identify the accused from a distance of about 50 feet due to the light source within the truck's cabin.
There cannot be serious dispute on this aspect because there is no argument that the appellant was in fact driving the truck. What is more important however, is the exact sequence of events. The depositions of PW-2, PW-14 and PW-15 are consistent in that the truck had slowed and that SI Tiwari asked the appellant to stop it. When the appellant did not pay heed, SI Tiwari attempted and did board the truck. The appellant at that point allegedly pushed SI Tiwari. This point becomes crucial because the witnesses consistently deposed that SI Tiwari boarded the left side of the truck. If so, the accused would have had to use both his hands depending on how secure SI Tiwari was in the truck. However, PW2's deposition discloses that the accused appellant continued to drive with his right hand and used his left hand to push SI Tiwari.
Truth be told, the Bench then lays bare in para 10 that:
The High Court, we notice, did not go by the prosecution version entirely and observed in the impugned judgment that SI Tiwari fell off the truck on account of excessive speed of the truck. If that is the position, the prosecution's version that the appellant pushed him and deliberately ran over SI Tiwari is implausible. The deposition of PW-10 says that the appellant on being asked to stop had in fact slowed the truck after which a short altercation with SI Tiwari took place and then the deceased boarded the truck. PW-10 also deposed that the truck was driven in an oblique manner. Given all these factors, the propensity of the eye witnesses, PW-2, PW-10, PW-14 and PW-15 to improve upon the actual incident and introduce exaggerations cannot be ruled out as they were the deceased's colleagues and subordinates.
There can however, be no doubt that the incident broadly occurred in the manner the prosecution alleged: upon receipt of the information of the truck being involved in a previous incident with the forest department barrier, SI Tiwari positioned himself along with others in front of the police station. When the appellant arrived at the spot in the truck, SI Tiwari gestured him to stop. Momentarily, he stopped down; after this SI Tiwari boarded from the left side of the truck. It is after this point that the prosecution version seems improbable and somewhat riddled with contradictions.
If one considers the fact that at least two eye witnesses turned hostile and that depositions of PW-2 and PW-10 disclose clear improvements, much importance cannot be given to the words uttered by the appellant to SI Tiwari, warning that if he tried to board, he would be killed. Likewise, there is no discussion about the map or the course that the truck took after SI Tiwari fell from the truck, i.e., whether it speeded up and that the appellant intended to drive over and crush SI Tiwari, and that the position where SI Tiwari fell was known by the appellant to be within the line of the rear tyre of the moving truck.
Briefly stated, the Bench then quite pertinently observes in para 11 that:
The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term likely in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused.
The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.
While citing the relevant case law to make the picture more clear on this, the Bench then seeks to point out in para 12 that:
The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr 1976 (4) SCC 382 notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that:
12. In the scheme of the Penal Code, culpable homicide is genus and murder its species. All murder is culpable homicide but not vice- versa. Speaking generally, culpable homicide sans special characteristics of murder, is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree.
This is the greatest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304..
13. The academic distinction between murder and culpable homicide not amounting to murder has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.
Quite significantly, the Bench then underscores in para 13 that:
The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh (2006) 11 SCC 444 . This court observed that:
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 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 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;
- nature of the weapon used;
- whether the weapon was carried by the accused or was picked up from the spot;
- whether the blow is aimed at a vital part of the body;
- the amount of force employed in causing injury;
- whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
- whether the incident occurs by chance or whether there was any premeditation;
- whether there was any prior enmity or whether the deceased was a stranger;
- whether there was any grave and sudden provocation, and if so, the cause for such provocation;
- whether it was in the heat of passion;
- whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
- 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.
More significantly, the Bench then envisages in para 14 that:
Coming back to the facts of this case, as observed earlier, there can be no serious dispute that the prosecution established the main elements of its factual allegations: the receipt of information of the breaking of the forest barrier; positioning of the deceased SI Tiwari, with a posse of policemen on the road; the identification of the appellant, as one who drove the truck; gesturing by the deceased to the appellant to stop the truck; the latter slowing down the vehicle; attempt by the SI to board the vehicle, and his being shaken off the truck, on account of the driver refusing to stop, and, on the other hand, speeding the vehicle. Even if the prosecution version that the appellant having threatened to kill the deceased were to be accepted, one cannot set much store by it, because no motive or no animus against the deceased was proved. A general expression of the extreme threat, (without any real intention of carrying it, since the truck was not laden with any contraband (In fact the owner of the truck deposed during the trial.) or was not used for any illegal or suspect activity), cannot be given too much weight. What is of consequence, is that upon the deceased falling off the truck, the appellant drove on. Here, the prosecution established that the truck was driven, without heed; however, it did not establish the intention of the driver (i.e. the appellant) to run over the deceased. This point, though fine, is not without significance, because it goes to the root of the nature of the intention. Did the appellant intend to kill SI Tiwari? We think not. Clearly, he knew that SI Tiwari had fallen off; he proceeded to drive on. However, whether the deceased fell in the direction of the rear tyre, of the truck, or whether he fell clear of the vehicle, has not been proved; equally it is not clear from the evidence, that the appellant knew that he did. What was established, however was that he did fall off the truck, which continued its movement, perhaps with greater rapidity. This does not prove that the appellant, with deliberate intent, drove over the deceased and he knew that the deceased would have fallen inside, so that the truck's rear tyre would have gone over him. In these circumstances, it can however be inferred that the appellant intended to cause such bodily injury as was likely to cause SI Tiwari's death.
Even more significantly, the Bench then hastens to add in para 15 that:
All the essential elements show that the appellant did not have any previous quarrel with the deceased; there was lack of animus. The act resulting in SI Tiwari's death was not pre-meditated. Though it cannot be said that there was a quarrel, caused by sudden provocation, if one considers that the deceased tried to board the truck, and was perhaps in plain clothes, the instinctive reaction of the appellant was to resist; he disproportionately reacted, which resulted in the deceased being thrown off the vehicle. Such act of throwing off the deceased and driving on without pausing, appears to have been in the heat of passion, or rage. Therefore, it is held that the appellant's conviction under Section 302 IPC was not appropriate.
In short, the Bench then thus holds in para 16 that:
Section 304 IPC Code provides punishment for culpable homicide not amounting to murder (under Section 299 IPC). In the facts of the present case, this court is of the opinion that the appellants should be convicted for the offence punishable under the first part of Section 304 IPC, as he had the intention of causing such bodily harm, to the deceased, as was likely to result in his death, as it did. Having regard to these circumstances, the conviction recorded by the courts below, is altered to one under Section 304 Part I, IPC. The sentence too is therefore modified - instead of rigorous imprisonment (RI) for life, the appellant is hereby sentenced to 10 years' RI. The direction to pay fine, is however, left undisturbed.
Finally, the Bench then holds in para 17 that:
The appeal succeeds and is allowed in the above terms. No costs.
It thus merits no reiteration that the Bench of Justice S Ravindra Bhat and Justice KM Joseph of the Apex Court have quite vividly illustrated the difference that lies in the degree of the act while citing the relevant case laws also. The subtle distinction between culpable homicide under Section 304 IPC and murder under Section 300 IPC is also elaborated explained as discussed hereinabove. So the picture now is entirely clear before us and nothing more remains to be said here!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
