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PETITIONER:

HARENDRA NATH MANDAL

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT02/03/1993

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

ANAND, A.S. (J)

CITATION:

1993 AIR 1977 1993 SCR (2) 137

1993 SCC (2) 435 JT 1993 (3) 650

1993 SCALE (1)745

ACT:

Indian Penal Code, 1860.

Section 304, Part 1-When can be invoked-Attack by accused-

Victim surviving injuries inflicted by accused-Trial Court

sentencing accused under section 307134-High Court

converting sentence to one tinder section 304, Part 1-

Whether justified.

Sections 101 and 104-Occurrence of incident due to dispute

regarding harvesting of crops-Accused suffering injuries

along with the victims in the same incident-Non-disclosure

of true version of occurrence by prosecution-Right of

private defence of person and property-Whether available to

the accused-Whether accused entitled to be acquitted.

HEADNOTE:

The prosecution alleged that when PW 9 and his brother,

having learnt that the appellant and two other persons were

harvesting paddy from their plot, went there and protested

as to why their crops were being harvested, one person

caught hold of the hands of PW 9's brother, and the

appellant, assaulted him on his head with the back portion

of a Tangi, and at that very time, another person assaulted

PW 9, the informant, with a lathi on his right hand. The

three persons were charged with attempt to commit murder of

PW 9's brother, and also theft of the paddy crops from the

plot of PW 9 and his brother.

On consideration of the evidence on record, the Sessions

Judge convicted the appellant and another accused for

offence under section 307 read with section 34 of the Penal

Code. They were sentenced to undergo seven years' and five

years' rigorous imprisonment respectively. The third

accused was convicted under section 323 and sentenced to

undergo rigorous imprisonment for six months. All of them

were also convicted under section 379 of the Penal Code and

sentenced to one year's rigorous imprisonment each.

138

During the pendency of the appeal before the High Court,

preferred by the three accused, one of them died and his

appeal abated. The High Court set aside the conviction and

sentence under section 323 of the Penal Code against the

other accused and he was acquitted of the charges levelled

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against him. The High Court also set aside the conviction

and sentence under section 307 read with section 34 passed

against the appellant, but convicted him under section 304

Part 1 of the Penal Code and sentenced him to two years'

rigorous imprisonment.

In the appeal before this Court on behalf of the appellant,

it was urged that when PW 9 to whom the appellant was

alleged to have given a blow by the back portion of a Tangi,

survived the injury, there was no question of convicting the

appellant under section 304 Part 1 of the Penal Code. It

was also contended that the appellant had sustained injuries

during the same occurrence including one at the scalp.

Allowing the appeal, this Court,

HELD : 1.1. Section 304 does not create an offence but

provides the punishment for culpable homicide not amounting

to murder. In view of section 300 of the Penal Code, except

in cases covered by the five exceptions mentioned therein,

culpable homicide is murder. If a death is caused and the

case is covered by any one of the five exceptions of section

300, then such culpable homicide shall not amount to murder.

Section 304 provides punishment for culpable homicide not

amounting to murder and draws a distinction in the penalty

to be inflicted in cases covered by one of the five

exceptions where an intention to kill is present and where

there is only knowledge that death will be a likely result,

but intention to cause death or such bodily injury which is

likely to cause death is absent. The first part of section

304 applies where there is guilty intention whereas the

second part applies where there is guilty knowledge. But

before an accused is held guilty and punished under first

part or second part of section 304, a death must have been

caused by him under any of the circumstances mentioned in

the five exceptions to section 300, which include death

caused while deprived of power of self-control under grave

and sudden provocation, while exercising in good faith the

right of private defence of person or property, and in a

sudden fight in the heat of passion without permeditation.

[141B-D,F]

1.2. In the instant case, when death itself had not been

caused, there

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was no occasion for convicting the appellant under section

304 of the Penal Code. [141G]

1.3. The appellant, in his examination under section 313 of

the Code of Criminal Procedure, stated that he had sustained

injuries during the same occurrence while warding off the

Bhala blow aimed at his chest by PW 9. The aforesaid

injuries on the person of the appellant were examined by the

Civil Assistant Surgeon, who had been examined as a witness

at the trial. The other accused, who died during the

pendency of the appeal had also been examined by the Jail

Doctor and the Doctor was examined as a witness at the

trial, who proved the injuries on the person of accused.

The Judge himself on consideration of the materials on

record has come to the conclusion that the manner of

occurrence, as alleged by the appellants in which they

sustained injuries, has been suppressed and the true version

of the occurrence has not been given by the prosecution and

in the circumstances, the right of private defence of person

and property cannot be completely ruled out. [142B-CG-H]

1.4. In view of the finding of the High Court that the

prosecution had not disclosed the true version of the

occurrence, and the right of private defence of person and

property was available to the appellant, the appellant was

entitled to be acquitted. [143A]

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JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 462 of

1985.

From the Judgment and Order dated 21.12.84 of the Patna High

Court in Crl. A. No. 146 of 1978 (R).

R.C. Kohli Advocate for the Appellant.

Pramod Swarup Advocate for the Respondent.

The Judgment of the Court was delivered by

N.P. SINGH, J. This appeal is on behalf of the sole

appellant who has been convicted under section 304 Part 1 of

the Indian Penal Code (hereinafter referred to as "the Penal

Code") and has been sentenced to undergo rigorous

imprisonment for two years by the High Court.

The appellant along with Sitaram Mandal and Tribhanga Mandal

140

were charged for offence under section 307 read with section

34 for attempting to commit the murder of Gopal Chandra

Ravidas, They had also been charged under section 379 of the

Penal Code for committing the theft of the paddy crops from

plot No. 2760 of village Amjhore, P.S. Baliapur, District

Dhanbad.

According to the prosecution case, on 26.10.75 at about

12.00 noon the informant Bishnu Ravidas (PW-9) and his

brother Gopal Chandra Ravidas having learnt that the accused

persons were harvesting their paddy from the plot aforesaid

went there. When they protested as to why their crops were

being harvested, accused Sitaram Mandal caught hold of the

hands of Gopal Chandra Ravidas and Harendra Nath Mandal, the

appellant, assaulted Gopal Chandra Ravidas on his head with

the back portion of a Tangi. At that very time, accused

Tribhanga Mandal assaulted informant with a lathi on his

right hand.

On a consideration of the evidence on record, the learned

Sessions Judge convicted appellant Harendra Nath Mandal and

Sitaram Mandal for offence under section 307 read with

section 34 of the Penal Code and sentenced the appellant,

Harendra Nath Mandal to undergo rigorous imprisonment for

seven years and accused Sitaram Mandal to undergo rigorous

imprisonment for five years. Accused Tribhanga Mandal was

convicted under section 323 and sentenced to undergo

rigorous imprisonment for six months. All of them were also

convicted under section 379 of the Penal Code and sentenced

to one year rigorous imprisonment each. The sentences were

directed to run concurrently.

During the pendency of the appeal before the High Court,

Sitaram Mandal died and his appeal abated. The learned

Judge, however, set aside the conviction and sentence under

section 307 read with section 34 passed against the

appellant Harendra Nath Mandal but convicted him under

section 304 Part 1 of the Penal Code and sentenced him to

two years' rigorous imprisonment. The conviction and

sentence under section 379 were also set aside. The

conviction and sentence under section 323 of the Penal Code

against Tribhanga Mandal were also set aside and he was

acquitted of the charges levelled against him. It was

rightly urged on behalf of the appellant that when Gopal

Chandra Ravidas to whom this appellant is alleged to have

given a blow by the back portion of a Tangi, has survived

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the injury aforesaid, there was no question of covicting the

appellant under section 304 Part 1 of the Penal Code.

Section 304 does not create an offence but provides the

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punishment for culpable homicide not amounting to murder.

In view of section 299 of the Penal Code, whoever causes

death by doing an act with the intention of causing death,

or with the intention of causing such bodily injury as is

likely to cause death, or with the knowledge that he is

likely by such act to cause death, commits the offence of

culpable homicide. In view of section 300 of the Penal

Code, except in cases covered by the five exceptions

mentioned therein, culpable homicide is murder. It is well-

known that if a death is caused and the case is covered by

any one of the five exceptions of section 300 then such

culpable homicide shall not amount to murder. Section 304

provides punishment for culpable homicide not amounting to

murder and draws a distinction in the penalty to be

inflicted in cases covered by one of the five exceptions,

where an intention to kill is present and where there is

only knowledge that death will be a likely result, but

intention to cause death or such bodily injury which is

likely to cause death is absent. To put it otherwise if the

act of the accused falls within any of the clauses 1, 2 and

3 of section 300 but is covered by any of the five

exceptions it will be punishable under the first part of

section 304. If, however, the act comes under clause 4 of

section 300 i.e. the person committing the act knows that it

is so imminently dangerous that it must, in all probability

cause death but without any intention to cause death and is

covered by any of the exceptions, it will be punishable

under the second part. The first part of section 304

applies where there is guilty intention whereas the second

part applies where there is guilty knowledge. But before an

accused is held guilty and punished under first part or

second part of section 304, a death must have been caused by

him under any of the circumstances mentioned in the five

exceptions to section 300, which include death caused while

deprived of power of self-control under grave and sudden

provocation, while exercising in good faith the right of

private defence of person or property, and in a sudden fight

in the heat of passion without premeditation. So far the

present case is concerned, when death itself had not been

caused, there was no occasion for convicting the appellant

under section 304 of the Penal Code.

Now the next question is as to whether the appellant should

be convicted for causing injury on the head of aforesaid

Gopal Chandra

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Ravidas with the back portion of a Tangi. It was pointed

out that the appellant has sustained injuries during the

same occurrence including one at the scalp. The aforesaid

injuries on the person of the appellant were examined by the

Civil Assistant Surgeon, Sadar Hospital, Dhanbad, who has

been examined as a witness at the trial. The appellant in

his examination under section 313 of the Code of Criminal

Procedure stated that he had sustained injuries aforesaid

while warding off the Bhala blow aimed at his chest by the

aforesaid Gopal Chandra Ravidas. The other accused Sitaram

Mandal who died during the pendency of the appeal had also

been examined by the jail Doctor in the Dhanbad jail and

said Doctor was examined as a witness at the trial, who

proved the injuries on the person of accused Sitaram Mandal.

The learned Judge himself on consideration of the materials

on recored has come to the following conclusion :-

"From the aforesaid discussion of the

evidence, in the facts and circumstances of

the case, it appears that since long before

the occurrence both the parties were claiming

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title and possession over the disputed land

and the occurrence took place regarding the

harvesting of the paddy crop. In the same

occurrence the informant (PW-9) and his

brother Gopal Ravidas sustained injuries and

the first and second appellants were also

injured. According to the appellants Gopal

Ravidas aimed a 'Bhala' blow on the chest of

the first appellant but he warded it off and

sustained injuries at his hand. The first and

the second appellants were also assaulted by

lathis. The injuries were examined and proved

by the doctor (DW-8). Likewise, the injuries

of the second appellant were examined by the

jaid doctor, (DW-7), who proved the injury

report. May be, that their injuries were not

severe but it was a matter of luck that the

first appellant could avoid and ward off the

'Bhala' blow aimed at his chest. The manner

of occurrence as alleged by the appellants in

which they sustained injuries has been

suppressed and the true version of the

occurrence has not been given by the

prosecution. In the circumstances, the right

of private defence of person and property

cannot be completely ruled out."

143

Once the finding aforesaid was recorded that the prosecution

has not disclosed the true version of the occurrence and the

right of private defence of person and property was

available to the appellant then the appellant was entitled

to be acquitted.

Accordingly, the appeal is allowed. The conviction and

sentence passed against the appellant are set aside.

N.P.V.

Appeal allowed.

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