Bombay High Court 30 (c) With the knowledge that the act is

likely to cause death.

1.
Reg vs Govinda on 18 July, 1876 §.300.

(1877) ILR 1 Bom 342 Subject to certain exceptions,

culpable homicide is murder, if the
5 Author: Melvill
35 act by which the death is caused is
Bench: Melvill, Kemball, N done
Haridas
(1) With the intention of causing
JUDGMENT Melvill, J. death;

1. I understand that these proceedings (2) With the intention of causing

10 have been referred to me 40 such bodily injury as the offender
under §.271-B of the Code of knows to be likely to cause the death
Criminal Procedure, in order that I of the person to whom the harm is
may decide whether the offence caused;
committed by the prisoner was
15 murder, or culpable homicide not (3) With the intention of causing
45 bodily injury to any person, and the
amounting to murder.
bodily injury intended to be inflicted
2. For convenience of comparison, is sufficient in the ordinary course of
the provisions Sec.299 and Sec.300 nature to cause death;
of the Indian Penal Code may be
(4) With the knowledge that the act is
20 stated thus:
50 so imminently dangerous that it must
§.299. in all probability cause death, or such
bodily injury as is likely to cause
A person commits culpable death.
homicide, if the act by which the
death is caused is done 3. I have underlined the words which
55 appear to me to mark the differences
25 (a) With the intention of causing between the two offences.
death;
4. (a) and (1) show that where there
(b) With the intention of causing is an intention to kill, the offence is
such bodily injury as is likely to always murder.
cause death:
60 5. (c) and (4) appear to me intended
to apply (I do not say that they are

1
 necessarily limited) to cases in which culpable homicide, if the bodily
there is no intention to cause death or injury intended to be inflicted is
bodily injury. Furious driving, firing 40 likely to cause death; it is murder, if
at a mark near a public road, would such injury is sufficient in the,
5 be cases of this description. Whether ordinary course of nature to cause
the offence is culpable homicide or death. The distinction is fine, but
murder, depends upon the degree of appreciable. It is much the same
risk to human life. If death is a likely 45 distinction as that between (c) and
result, it is culpable homicide; if it is (4), already noticed. It is a question
10 the most probable result, it is murder. of degree of probability. Practically, I
think, it will generally resolve itself
6. The essence of (2) appears to me into a consideration of the nature of
to be found in the words which I 50 the weapon used. A blow from the
have underlined. The offence is fist or a stick on a vital part may be
murder, if the offender knows that likely to cause death; a wound from a
15 the particular person injured is likely, sword in a vital part is sufficient in
either from peculiarity of the ordinary course of nature to cause
constitution, or immature age, or 55 death.
other special circumstance, to be
killed by an injury which would not 8. In the present case the prisoner, a
20 ordinarily cause death. The young man of 18, appears to have
illustration given in the section.is the kicked his wife, (a girl of 15) and to
following: have struck her several times with his
60 fist on the back. These blows seem to
A, knowing that Z is laboring under have caused her no serious injury.
such a disease that a blow is likely to She, however, fell on the ground, and
25 cause his death, strikes him with I think that the evidence shows that
intention of causing bodily injury. Z the prisoner then put one knee on her
dies in consequence of the blow. A is 65 chest, and struck her two or three
guilty of murder, although the blow times on the face. One or two of
might not have been sufficient in the these blows, which, from the medical
30 ordinary course of nature to cause the evidence, I believe to have been
death of a person in a sound state of violent and to have been delivered
health. 70 with the closed fist, took effect on the
girl's left eye, producing contusion
7. There remain to be considered (b) and discoloration. The skull was not
and (3), and it is on a comparison of fractured, but the blow caused an
35 these two clauses that the decision of extravasation of blood on the brain,
doubtful cases like the present must 75 and the girl died in consequence
generally depend. The offence is either on the spot, or very shortly

2
 afterwards. On this state of facts the
Sessions Judge and the assessors
have found the prisoner guilty of 40
murder, and he has been sentenced to
5 death. I am myself of opinion that the
offence is culpable homicide, and not
murder. I do not think there was an
intention to cause death; nor do I 45
think that the bodily injury was
10 sufficient in the ordinary course of
nature to cause death. Ordinarily, I.
think, it would not cause death. But a
violent blow in the eye from a man's 50
fist, while the person struck is lying
15 with his or her head on the ground, is
certainly likely to cause death, either
by producing concussion or
extravasation of blood on the surface 55
or in the substance of the brain. A
20 reference to Taylor's Medical
Jurisprudence (Fourth Edition, page
294) will show how easily life may
be destroyed by a blow on the head 60
producing extravasation of blood.

25 9. For these reasons I am of opinion

that the prisoner should be convicted
of culpable homicide not amounting 65
to murder, and I would sentence him
to transportation for seven years.

30 10. This order was accordingly

passed by the Court. 70

35
75

3
 2. factions which. were proceeded
against under Sec..107 Cr. P.C. In the
State of Andhra Pradesh v. Panchyat elections of 1954, a clash
Rayavarapu Punnayya & Another 25 took place between the two parties. A
5 1977 AIR 45, 1977 SCR (1) 601
(15 September, 1976)1 member of the Kamma faction was
Author: R S Sarkaria murdered. Consequently, nine
[SARKARIA, RANJIT SINGH, persons belonging to the Reddy
FAZALALI, SYED MURTAZA] faction were prosecuted for that
30 murder. Other incidents also' took
10 1. In Rompicherla village, there were
place in which these warring factions
factions belonging to three major
were involved. So much so, a
communities viz., Reddys, Kammas
punitive police force was stationed in
and Bhatrajus. Rayavarapu
this village to keep the peace during
(Respondent No. 1 herein) was the
35 the period from March 1966 to
15 leader of Kamma faction, while
September 1967.
Chopparapu Subbareddi was the
leader of the Reddys. In politics, the 2. Sarikonda Kotamraju, the
Reddys were supporting the deceased person in the instant case,
Congress Party, while Kammas were was the leader of Bhatrajus. In order
20 supporters of Swatantra Party. There 40 to devise protective measures against
was bad blood between the two the onslaughts of their opponents, the
1
CRIMINAL APPELLATE Bhatrajus held a meeting at the house
JURISDICTION: Criminal Appeal No. of the deceased, wherein they
214 of 1971.(Appeal by Special Leave resolved to defend themselves
from the judgment and Order dated 27-7.
45 against the aggressive actions of the
1970 of the Andhra Pradesh High. Court
in Criminal Appeals Nos. 26 and 27/69). respondents and their party-men. PW
7 --1234SCI/76 P. Parmeswara Rao and 1, a member of Bhatrajus faction has
G. Narayana Rao for the Appellant. A. a cattle-shed. The passage to this
Subba Rao for the Respondents. The
Judgment of the Court was delivered by cattle-shed was blocked by the other
SARKARIA, J. This appeal by special 50 party. The deceased took PW 1 to
leave is directed against a judgment of the Police Station Nekarikal and got a
High Court of Andhra Pradesh. It arises
report lodged there. On July 22,
out of these facts.
1968, the Sub-Inspector of Police
came to the village and inspected the
55 disputed wail in the presence of the

4
 parties. The Sub- Inspector went towards the Coffee Hotel situated
away directing both the parties to 35 near the Choultry. From there, they
come to the Police Station on the picked up heavy sticks and went after
following morning so that a the deceased into the Choultry. On
5 compromise might be effected. seeing the accused. P W 1 ran away
towards a hut nearby. The deceased
3. Another case arising out of a 40 stood up.
report made to the police by one
Kallam Kotireddi against Accused 2 5. He was an old man of 55 years. He
and 3 and another in respect of was not allowed to run. Despite the
10 offences entreaties made by the deceased with
under Sec..324, 323 and 325, Penal folded hands, A-1 and A-2
Code was pending before a 45 indiscriminately pounded the legs
Magistrate at Narasaraopet and the and arms of the deceased. One of the
next date for hearing fixed in that by-standers, PW 6, asked the
15 case was July 23, 1968. assailants as to why they were
mercilessly beating a human being,
4. On the morning of July 23, 1968, 50 as if he were a buffalo. The assailants
at about 6-30 a.m., PWs 1, 2 and the angrily retorted that the witness was
deceased boarded Bus No. AP 2607 nobody to question them and
at Rompicherla for going to continued the beating till the
20 Nekarikal. Some minutes later, deceased became unconscious. The
accused 1 to 5 (hereinafter referred to 55 accused then threw their sticks at the
as A1, A2, A3, A4 and A5) also got spot, boarded another vehicle, and
into the same bus. The accused had went away. The. occurrence was
obtained tickets for proceeding to witnessed by PWs 1 to 7. The victim
25 Narasaraopet. When the bus stopped was removed by PW 8 to
at Nekarikal Cross Roads, at about 7- 60 Narasaraopet Hospital in a tempo.
30 a.m., the deceased and his There, at about 8.45 a.m., Doctor
companions alighted for going to the Konda Reddy examined him and
Police Station. The five accused also found 19 injuries, out of which, no
30 got down. The deceased and PW 1 less than 9 were (internally) found to
went towards a Choultry run by PW 65 be grievous. They were:
4, While PW 2 went to the roadside
to ease himself. A1 and A2 went

5
 1. Dislocation of distal end of death in the ordinary course of
proximal phalanx of left middle nature. The cause of death, according
finger. to the Doctor, was shock and
2. Fracture of right radius in its
40 hemorrhage resulting from multiple
5 middle.
3. Dislocation of lower end of right injuries.
ulna.
4. Fracture of lower end of right 7. The trial Judge convicted A-1 and
femur. A-2 under Sec..302 as well as
10 5. Fracture of medial malleolus of under Sec.302 read
right tibia. 45 with Sec..34, PenalCode and
6. Fracture. of lower 1/3 of right sentenced each of them to
fibula. imprisonment for life.
7. Dislocation of lower end of left
15 ulna. 8. On appeal by the convicts, the
8. Fracture of upper end of left tibia.
High Court altered their conviction to
9. Fracture of right patella.
50 one under Sec..304, Pt. II, Penal
6. Finding the condition of the Code and reduced their sentence to
injured serious, the Doctor sent five years rigorous imprisonment,
20 information to the Judicial each.
Magistrate for getting his dying
declaration recorded. On Dr. K. 9. Aggrieved by the judgment of the
Reddy's advice, the deceased was 55 High Court, the State has come in
immediately removed to the Guntur appeal to this Court after obtaining
25 Hospital where he was examined and special leave.
given medical aid by Dr. Sastri. His
POINT FOR DETERMINATION:
dying declaration, Ex. P-5, was also
recorded there by a Magistrate (PW 10. 'The principal question that falls
10) at about 8.05 p.m. The deceased, 60 to be considered in this appeal is,
30 however, succumbed to his injuries whether the offence disclosed by the
at about 4.40 a.m. on July 24, 1968, facts and circumstances established
despite medical aid. The autopsy was by the prosecution against the
conducted by Dr. P.S. Sarojini (PW respondent, is 'murder' or 'culpable
12) in whose opinion, the injuries 65 homicide not amounting to murder'.
35 found on the deceased were
cumulatively sufficient to cause

6
 11. In the scheme of the Penal Code, 35 courts losing sight of the true scope
'culpable homicide' is genus and and meaning of the terms used by the
'murder' its specie. All 'murder' is legislature in these sections, allow
'culpable homicide' but not vice themselves to be drawn into minute
5 versa. Speaking generally, 'culpable abstractions. The safest way of
homicide' sans 'special characteristics 40 approach to the interpretation and
of murder', is 'culpable homicide not application of these provisions seems
amounting to. murder'. For the to be to keep in focus the key words
purpose of fixing punishment, used in the various clauses
10 proportionate to the gravity of this of Sec..299 and 300. The following
generic offence, the Code practically 45 comparative table will be helpful in
recognizes three digress of culpable appreciating the points of distinction
homicide. The first is, what may be between the two offences.
called, culpable homicide of the first
15 degree. This is the gravest form of 13. Sec..299 & Sec..300 A person
culpable homicide which is defined commits culpable homicide Subject
in Sec..300 as 'murder'. The second 50 to certain if the act by which the
may be termed as 'culpable homicide death exceptions culpable is caused
of the second degree'. This is is done homicide is murder if the act
20 punishable under the 1st part by which the death caused is done--
of Sec..304. Then, there is 'culpable
14. INTENTION
homicide of the third degree.' This is
55 (a) with the intention of causing
the lowest type of culpable homicide
death:(1) with the intention of
and the punishment provided for it is,
causing death; or
25 also, the lowest among the
(b) with the intention of (2) with the
punishments provided for the three
intention of causing such bodily
grades. Culpa- ble homicide of this
60 injury causing such bodily injury as
degree is punishable under the
the offender knows to or be likely to
second Part of Sec.. 304.
cause the death of person to whom
30 12. The academic distinction the harm is caused; or (3) with the
between 'murder' and 'culpable intention of causing bodily injury to
homicide not amounting to murder' 65 any person and the bodily injury
has vexed the courts for more than a intended to be inflicted is sufficient in
century. The confusion is caused, if

7
 the ordinary course of nature to knowledge of the likelihood of such
cause death; injury causing the death of the
35 particular victim, is sufficient to
or bring the killing within the ambit of
this clause. This aspect of cl. (2) is
15. KNOWLEDGE
borne out by illustration (b)
5 (c) with the knowledge that (4) with appended to Sec.. 300.
the knowledge that the act likely to
40 17. Clause (b) of Sec.. 299 does not
cause death. the act is so imminently
postulate any such knowledge on the
dangerous that it must in all
part of the offender. Instances of
probability cause death or such
cases falling under cl. (2) of Sec..
10 bodily injury as is likely to cause
300 can be where the assailant causes
death, and without any excuse for
45 death by a fist blow intentionally
incurring the risk of using death or
given knowing that the victim is
such injury as is mentioned above.
suffering from an enlarged liver, or
16. Clause (b) of Sec. enlarged spleen or diseased heart and
15 299 corresponds with cls. (2) and (3) such blow is likely to cause death of
of Sec. 300. The distinguishing 50 that particular person as a result of
feature of the mens rea requisite the rupture of the liver, or spleen or
under cl. (2) is the knowledge the failure of the heart, as the case
possessed by the offender regarding may be. If the assailant had no such
20 the particular victim being in such a knowledge about the disease or
peculiar condition or state of health 55 special frailty of the victim, nor an
that the intentional harm caused to intention to. cause death or bodily
him is likely to be fatal, injury sufficient 'in the ordinary
notwithstanding the fact that' such course of nature to cause death, the
25 harm would not in the ordinary way offence will not be murder, even if
of nature be sufficient to cause death 60 the injury which caused the death,
of a person in normal health or was intentionally given.
condition. It is noteworthy that the
18. In clause (3) of Sec..300, instead
'intention to cause death' is not an
of the words 'likely to cause death'
30 essential requirement of el. (2). Only
occurring in the corresponding cl. (b)
the intention of causing the bodily
65 of Sec..299, the words "sufficient in
injury coupled with the offender's
8
 the ordinary course of nature" have 19. In Virsa Singh v. The State of
been used. Obviously, the distinction Punjab [1958] S.C.R. 1495 (2)
lies between a bodily injury likely to Vivian Bose j. speaking for this
cause death and a bodily injury Court, explained the meaning' and
5 sufficient in the ordinary course of 40 scope of Clause (3), thus (at p. 1500):
nature to cause death. The distinction
is fine but real, and, if over- looked, 20. "The prosecution must prove the
may result 'in miscarriage of justice. following facts before it can bring a
The difference between cl. (b) of case under Sec.300, 3rdly'. First, it
10 Sec..299 and cl. (3) of Sec.. 300 is must establish, quite objectively, that
one of the degree of probability of 45 a bodily injury is present; secondly
death resulting from the intended the nature of the injury must be
bodily injury. To put it more broadly, proved. These are purely objective
it is the degree of probability of death investigations. It must be proved that
15 which determines whether a culpable there was an intention to inflict that
homicide is of the gravest, medium 50 particular injury, that is to say, that it
or the lowest degree. The word was not accidental or unintentional or
"likely" in cl. (b) of Sec..299 conveys that some other kind of injury was
the sense of 'probable' as intended. Once these three elements
20 distinguished from a mere are proved to be present, the enquiry
possibility. The words "bodily 55 proceeds further, and, fourthly it
injury... sufficient in the ordinary must be proved that the injury of the
course of nature to cause death" type just described made up of the
mean that death will be the "most three elements set out above was
25 probable" result of the injury having sufficient to cause death in the
regard to the ordinary course of 60 ordinary course of nature. This part
nature. For cases to fall within cl. (3), of the enquiry is purely objective and
it is not necessary that the offender inferential and has nothing to do with
intended to cause death, So long as the intention of the offender."
30 death ensues from the intentional.
21. Thus according to the rule laid
bodily injury or injuries sufficient to
65 down in Virsa Singh's Case (supra)
cause death in the ordinary course of
even if the intention of accused was
nature. Rajwant and anr. v. State of
limited to the infliction of a bodily
Kerala A.I.R. 1966 SC. 1874. is an
injury sufficient to cause death in the
35 apt illustration of this point -
9
 ordinary course of nature and did not convenient for it to approach the
extend to the intention of causing 35 problem in three stages. The question
death, the offence would be murder. to be considered at the first stage
Illustration (c) appended to would be, whether the accused has
5 Sec..300 clearly brings out this point. done an act by doing which he has
caused the death of another. Proof of
22. Clause (c) of Sec..299 and cl.(4) 40 such causal connection between the
of Sec.. 300 both require knowledge act of the accused and the death,
of the probability of the causing leads to the second stage for
death. It is not necessary for the considering whether that act of the
10 purpose of this case to dilate much accused amounts to "culpable
on the distinction between these 45 homicide" as defined in Sec. 299. If
corresponding clauses. It will be the answer to this question is prima
sufficient to say that cl. (4) of Sec.. facie found in the affirmative, the
300 would be applicable where the stage for considering the operation of
15 knowledge of the offender as to the Sec.. 300, Penal Code is reached.
probability of death of a person or 50 This is the stage at which the Court
persons in general--as distinguished should determine whether the facts
from a particular person or persons--- proved by the prosecution bring the
being caused from his imminently case within the ambit of any of the
20 dangerous act, approximates to a four Clauses of the definition of
practical certainty. Such knowledge 55 murder' contained in Sec..300. If the
on the part of the offender must be of answer to this question is in the
the highest degree of probability, the negative the offence would be
act having been committed by the 'culpable homicide not amounting to
25 offender without any excuse for murder', punishable under the first or
incurring the risk of causing death or 60 the second part of Sec.. 304,
such injury as aforesaid. depending. respectively, on whether
the second or the third Clause of
23. From the above conspectus, it
Sec.. 299 is applicable. If this
emerges that whenever a court is
question is found in the positive, but
30 confronted with the question whether
65 the case comes, within any of the
the offence is 'murder' or 'culpable
Exceptions enumerated in Sec..300,
homicide not. amounting to murder,'
the offence would still be 'culpable
on the facts of a case, it will be
homicide not amounting to murder'
10
 punishable under the First Part of the act of the offender is not directed
Sec.. 304, Penal Code. against any particular individual but
35 there is in his act that recklessness
24. The above are only broad and risk of imminent danger,
guidelines and not cast-iron knowingly and unjustifiably
5 imperatives. In most cases, their incurred, which is directed against
observance will facilitate the task of the man in general, and places the
the court. But sometimes the facts are 40 lives of many in jeopardy. Indeed, in
so inter-twined and the second and all fairness, Counsel for the appellant
the third stages so tele- scoped into has not contended that the case
10 each other, that it may not be would fall under el. (4) of Sec.. 300.
convenient, to give a separate His sole contention is that even if the
treatment to the matters involved in 45 accused had no intention to cause
the second and third stages. death, the facts established fully
bring the case within the purview of
25. Now let us consider the problem
cl. (3) of Sec.. 300 and as such the
15 before us in the light of the above
offence committed is murder and
enunciation.
50 nothing less. In support of this
26. It is not disputed that the death of contention reference has been made
the deceased was caused by the to Rajwant Singh v. State of Kerala
accused, there being a direct causal A.I.R. 1966 S.C. 148.
20 connection between the beating
27. As against this, Counsel for the
administered by A-1 and A-2 to the
55 respondent submits that since the
deceased and his death. The accused
accused selected only non-vital parts
confined the beating to. the legs and
of the body of the deceased, for
arms of the deceased, and therefore,
inflicting the injuries, they could not
25 it can be said that they perhaps had
be attributed the mens rea requisite
no "intention to cause death" within
60 for bringing the case under clause (3)
the contemplation clause (a) of Sec..
of Sec.. 300; at the most, it could be
299 or cl. (1) of Sec.. 300. It is
said that they had knowledge that the
nobody's case that the instant case
injuries inflicted by them were likely
30 falls within el. (4) of Sec.. 300. This
to cause death and as such the case
clause, as already noticed, is
65 falls within the third clause of Sec..
designed for that class of cases where
299, and the offence committed was

11
 only "culpable homicide not have stopped with in about half an
amounting to murder", punishable hour to one hour."
under Sec.. 304, Part 11. Counsel has
thus tried to support the reasoning of (d) "Death that had occurred 21
5 the High Court. 35 hours later, could have been only due
to shock and not due to hemorrhage
28. The trial Court, 'as 'already also, as stated by PW 12... who
noticed, had convicted the conducted the autopsy. This
respondent of the offence of murder. reference is strengthened by the
It applied the rule in Virsa Singh's 40 evidence of PW 26 who says that the
10 case (1958). and the ratio of Anda v. patient was under shock and he was
State AIR 1966 SC148 and held that treating him for shock by sending
the case was clearly covered by fluids through his vein. From the
clause Thirdly of Sec.. 300. The High injuries inflicted the accused
Court has disagreed with the trail 45 therefore could not have intended to
15 Court and held that the offence was cause death."
not murder but one under Sec.. 304,
Pt. II. (e) "A1 and A2 had beaten the
deceased with heavy sticks. These
29. The High Court reached this beatings had resulted in fracture of
conclusion on the following 50 the right radius, right femur, right
20 reasoning: tibia, right fibula, right patalla and
left tibia and dislocation of, therefore
(a) "There was no premeditation in considerable force must have been
the attack. It was almost an impulsive used while inflicting the blows.
act". 55 Accused 1 and 2 should have
therefore inflicted these injuries with
(b) "Though there were 21 injuries,
the knowledge that they are likely, by
25 they were all on the arms and legs
so beating, to cause the death of the
and not on the head or other vital
deceased, though they might not have
parts the body."
60 had the knowledge that they were so
(c) "There was no compound fracture imminently dangerous that in all
to result in heavy hemorrhage; there probability their acts would result in
30 must have been some bleeding". such injuries as are likely to cause
(which) "according to PWI might the death. The offence is therefore

12
 culpable homicide falling under Sec. 35 also was an internal fracture, the
299, I.P.C. punishable under Sec.. bone was visible through the wound.
304 Part II and not murder." Dr. D.A. Sastri, PW 26, had testified
that he was treating Kotamraju
30. With respect we are unable to injured of shock, not only by sending
5 appreciate and accept this reasoning. 40 fluids through his vein, but also
With respect, to be inconsistent, blood. This part of his statement
erroneous and largely speculative, It wherein he spoke about the giving of
appears to us To say that the attack blood transfusion to the deceased,
was not premeditated or pre- planned appears to have been overlooked by
10 is not only factually incorrect but 45 the High Court. Dr. Kondareddy, PW
also at war with High Court's own 11, who was the first Medical Officer
finding that the injuries were caused to examine -the injuries of the
to the deceased in furtherance of the deceased, had noted that there was
common intention of A-1 and A-2 bleeding and swelling around injury
15 and therefore, Sec.. 34, I.P.C. was 50 No. 6 which was located on the left
applicable. Further, the finding that leg 3 inches above the ankle. Dr.
there was no compound fracture, no Sarojini, PW 12, found fracture of
heavy hemorrhage and the cause of the left tibia underneath this injury.
the death was shock, only, is not in There could therefore, be no doubt
20 accord with the evidence on the 55 that this was a compound fracture.
record. The best person to speak P.W. 11 found bleeding from the
about hemorrhage and the cause of other abraded injuries, also. He
the death was Dr. P..S. Sarojini (PW however found the condition of the
12) who had conducted the autopsy. injured grave and immediately sent
25 She testified that the cause of death 60 an information to the Magistrate for
of the deceased was "shock and recording his dying declaration. PW
hemorrhage due to multiple in- 11 also advised immediate removal
juries". This categorical opinion of of the deceased to the bigger Hospital
the Doctor was not assailed in cross- at Guntur. There, also, Dr. Sastri
30 examination. In the post-mortem 65 finding that life in the patient was
examination report Ex. P-8, the ebbing fast, took immediate two-fold
Doctor noted that the heart of the action. First, he put the patient on
deceased was found full of clotted blood transfusion. Second, he sent an
blood. Again in injury No. 6, which intimation for recording his dying
13
 declaration. A Magistrate (PW 10) they are compound, when death may
came there and recorded the 35 occur from loss of blood, if a big
statement. These are all tell-tale vessel is wounded by the split end of
circumstances which unerring by a fractured bone."
5 show that there was substantial
haemorrhage from some of the 33. It may be noted, in the first place,
injuries involving compound that this opinion of the learned author
fractures. This being the case, there 40 is couched in too general and wide
was absolutely no reason to doubt the language. Fractures of some vital
10 sworn word of the Doctor, (PW 12) bones, such as those of the skull and
that the cause of the death was shock the vertebral column are generally
and hemorrhage. known to be dangerous to life.
45 Secondly, even this general statement
31. Although the learned Judges of has been qualified by the learned
the High Court have not specifically author, by saying that compound
15 referred to the quotation from page fractures involving hemorrhage, are
289, of Modi's book on Medical ordinarily dangerous. We have seen,
Jurisprudence and Toxicology (1961 50 that some of the fractures underneath
Edn.) which was put to Dr. Sarojini the injuries of the deceased, were
in cross-examination, they appear to compound fractures accompanied by
20 have derived support from the same substantial hemorrhage. In the face of
for the argument that fractures of this finding, Mody's opinion, far
such bones "are not ordinarily 55 from advancing the contention of the
dangerous"; therefore, the accused defence, discounts it.
could not have intended cause death
25 but had only knowledge that they 35. The High Court has held that the
were likely by such beating to cause accused had no intention to cause
the death of the deceased. It will be death because they deliberately
worthwhile to extract that quotation 60 avoided to hit any vital part of the
from Mody, as a reference to the body, and confined the beating to the
30 same was made by Mr. Subba Rao legs and arms of the deceased. There
before us, also. is much that can be said in support of
this particular finding. But that
32. According to Mody: "Fractures 65 finding -assuming it to be correct -
are not ordinarily dangerous unless does not necessarily take the case out

14
 of the definition of 'murder'. The crux conception and execution of the plan
of the matter is, whether the facts was not very long. The accused had
established bring the case within 35 purchased tickets for going further to
Clause Thirdly of Sec.. 300. This Narasaraopet, but on seeing the
5 question further narrows down into a deceased, their bete noire, alighting
consideration of the two-fold issue: at Nekarikal, they designedly got
down there and trailed him. They
(i) Whether the bodily injuries found 40 selected heavy sticks about 3 inches
on the deceased were intentionally in diameter, each, and with those
inflicted by the accused? and lethal weapons, despite the entreaties
of the deceased, mercilessly pounded
10 (ii) If so, were they sufficient to
his legs and arms causing no less
cause death in the ordinary course of
45 than 19 or 20 injuries, smashing at
nature?
least seven bones. mostly major
36. If both these elements are bones, and dislocating two more.
satisfactorily established, the offence
37. The beating was administered in
15 will be 'murder', irrespective of the
a brutal and reckless manner. It was
fact whether an intention on the part
50 pressed home with an unusually
of the accused to cause death, had or
fierce, cruel and sadistic
had not been proved. In the instant
determination. When the human
case, the existence of both these
conscience of one of the shocked
20 elements was clearly established by
bystanders spontaneously cried out in
the prosecution. There was bitter
55 protest as to why the accused were
hostility between the warring factions
beating a human being as if he were a
to which the accused and the
buffalo, the only echo it could draw
deceased belonged. Criminal
from the assailants, a minacious
25 litigation was going on between these
retort, who callously continued their
factions since long. Both the factions
60 malevolent action, and did not stop
had been proceeded against under
the beating till the deceased became
Sec.. 107, Cr. P.C. The accused had
unconscious. May be, the intention of
therefore a motive to beat the
the accused was to cause death and
30 deceased. The attack was
they stopped the beating under the
premeditated and pre-planned,
65 impression that the deceased was
although the interval between the
dead. But this lone circumstance

15
 cannot take this possible inference to was therefore the best informed
the plane of positive proof. expert who could opine with
Nevertheless, the formidable authority as to the cause of the death
weapons used by the accused in the and as to the sufficiency or otherwise
5 beating, the savage manner of its 40 of the injuries from which the death
execution, the helpless state of the ensued. Dr. Sarojini's evidence on
unarmed victim, the intensity of the this point stood on a better footing
violence caused, the callous conduct than that of the Doctors (PWs. 11
of the accused in persisting in the and 26) who had externally examined
10 assault even against the protest of 45 the deceased in his life-time. Despite
feeling bystanders--all, viewed this position, the High Court has not
against the background of previous specifically considered the evidence
animosity between the parties, of Dr. Sarojini with regard to the
irresistibly lead to the conclusion that sufficiency of the injuries to cause
15 the in- juries caused by the accused 50 death in the ordinary course of
to the deceased were intentionally nature. There is no reason why Dr.
inflicted, and were not accidental. Sarojini's evidence with regard to the
Thus the presence of the first element second element of Clause (3) of
of Clause Thirdly of Sec..300 had Sec..300 be not accepted. Dr.
20 been cogently and convincingly 55 Sarojini's evidence satisfactorily
established. This takes us to the establishes the presence of the
second element of Clause (3). Dr. second element of this clause.
Sarojini, PW 12, testified that the
injuries of the deceased were 38. There is therefore, no escape
25 cumulatively sufficient in the from the conclusion, that the offence
ordinary course of nature to cause 60 committed by the accused was
death. In her opinion--which we have 'murder', notwithstanding the fact
found to be entirely trustworthy--the that the intention of the accused to
cause of the death was shock and cause death has not been shown
30 hemorrhage due to the multiple beyond doubt.
injuries. Dr. Sarojini had conducted
65 39. In Anda v. State of
the post-mortem examination of the
Rajasthan (1966), this Court had to
dead body of the deceased. She had
deal with a very similar situation. In
dissected the body and examined the
that case, several accused beat the
35 injuries to the internal organs. She
16
 victim with sticks after dragging him 35 and the distinction between
into a house and caused multiple Sec..299 and Sec..300, answered the
injuries including 16 lacerated question in these terms:
wounds on the arms and legs, a
5 hematoma on the forehead and a 41. "The injuries were not on a vital
bruise on the chest. Under these part of the body and no weapon was
injuries to the arms and legs lay 40 used which can be described as
fractures of the right and left ulnas, especially dangerous. Only lathis
second and third metacarpal bones on were used. It cannot, therefore, be
10 the right hand and second metacarpal said safely that there was an intention
bone of the left hand, compound to cause the death of Bherun within
fractures of the right tibia and right 45 the first clause of Sec..300. At the
fibula. There was loss of blood from same time, it is obvious that his
the injuries. The Medical Officer hands and legs were smashed and
15 who conducted the autopsy opined numerous bruises and lacerated
that the cause of the death was shock wounds were caused. The number of
and syncope due to multiple injuries; 50 injuries shows that everyone joined
that all the injuries collectively could in beating him. It is also clear that the
be sufficient to cause death in the assailants aimed at breaking his arms
20 ordinary course of nature, but and legs. Looking at the injuries
individually none of them was so caused to Bherun in furtherance of
sufficient. 55 the common intention of all it is clear
that the injuries intended to be caused
40. Question arose whether in such a were sufficient to cause death in the
case when no significant injury had ordinary course of nature, even if it
25 been inflicted on a vital art of the cannot be said that his death was
body, and the weapons used were 60 intended. This is sufficient to bring
ordinary lathis, and the accused the, case within 3rdly of Sec.. 300."
could not be said to have the
intention of causing death, the 42. The ratio of Anda v. State of
30 offence would be 'murder' or merely Rajasthan (1966) applies in full force
'culpable homicide not amounting to to the facts of the present case. Here,
murder'. This Court speaking through 65 a direct causal connection between
Hidayatullah J. (as he then was), after the act of the accused and the death
explaining the comparative scope of was established. The injuries were

17
 the direct cause of the death. No are cumulatively sufficient to cause
secondary factor such as gangrene, the death in the ordinary course of
tetanus etc., supervened. There was nature, even if none of those injuries
no doubt whatever that the beating individually measures upto such
5 was premeditated and calculated. Just 40 sufficiency. The sufficiency spoken
as in Anda's case, here also, the aim of in this clause. as already noticed,
of the assailants was to smash the is the high probability of death in the
arms and legs of the deceased, and ordinary course of nature, and if such
they succeeded in that design. sufficiency exists and death is caused
10 causing no less than 19 injuries, 45 and the injury causing it is
including fractures of most of the intentional, the case would fail under
bones of the legs and the arms. While Clause 3rdly of Sec..300. All the
in Anda's case, the sticks used by the conditions which are a pre-requisite
assailants were not especially for the applicability of this clause
15 dangerous, in the instant case they 50 have been established and the
were unusually heavy, lethal offence committed by the accused in
weapons. All these acts of the the instant case was 'murder'.
accused were pre-planned and
intentional, which, considered
20 objectively in the light of the medical
evidence. were sufficient in the
55
ordinary course of nature to cause
death. The mere fact that the beating
was designedly con- fined by the
25 assailants to the legs and arms, or
that none of the multiple injuries
inflicted was individually sufficient
in the ordinary course of nature to 60
cause death, will not exclude the
30 application of Clause 3rdly of
Sec..300. The expression "bodily
injury" in Clause 3rdly includes also
its plural, so that the clause would
cover a case where all the injuries
65
35 intentionally, caused by the accused
18
 3. Pappu @ Hari Om went away after
Pappu @ Hari Om v. 35 abusing Ramesh. After sometime,
they returned back from the lane of
State of Madhya Pradesh 2009 Rahim Khan Ki Gali. Papu @ Hari
1977 AIR 45,1977 SCR (1) 601 Om had a 12 bore gun in his hand.
5 ARIJIT PASAYAT, J. Both accused abused Ramesh and
40 Pappu @ Hari Ram fired gun shots,
1. Accused Bal Kishan was convicted which caused injuries on the right
for offence punishable under shoulder of Ramesh and he fell
Sec..302 read with Sec..34 IPC. The down. Bablu (PW-2) and other
convictions were recorded by learned persons took him to the hospital on a
10 Additional Sessions Judge, Gohad, 45 handcart, where Ramesh was
Bhind, M.P. in Sessions Case declared dead. The report of this
No.11/95. The conviction as recorded incident was lodged by Rambabu
by the Trial Court was assailed by (PW-1), which is marked as Ex.P-1.
two separate appeals. As accused- On the basis of this report, Crime
15 appellant Bal Kishan died during the 50 No.261/94 was registered against the
pendency of the appeal, the same accused.
stood abated.
3. Before the High Court the basic
2. Prosecution version in a nutshell is stand was that the independent
as follows: On 2.11.1994 at about witnesses did not support the
20 9.30 p.m. Ram Babu (PW-1), Jagdish 55 prosecution version and it was only
(PW12), Sanjeev Kumar (PW-14) the evidence of PW-14 who
and Ramesh (hereinafter referred as supported the prosecution version.
‘deceased’ were playing cards near Additionally, it was submitted that
the house of Kishanlal under an the case at hand is not one which is
25 electric pole. The appellant Pappu @ 60 covered by Sec..302 IPC. The High
Hari Om along with co-accused Bal Court did not find any substance in
Kishan came there and asked the the aforesaid plea and dismissed the
persons who were playing cards to appeal. Learned counsel for the
permit them to play with them. appellant reiterated the plea taken
30 Ramesh objected to it and this gave 65 before the High before this Court.
rise to quarrel between Ramesh and Learned counsel for the Respondent-
the accused Pappu @ Hari Ram & State supported the judgment.
Bal Kishan. Both Balkishan and
19
 4. Coming to the plea relating to 35 For the purpose of fixing
acceptability of evidence, PW-10 punishment, proportionate to the
who reached the spot after hearing gravity of the generic offence, the
the sound of firing stated that when IPC practically recognizes three
5 he reached the spot he found Ramesh degrees of culpable homicide.
was lying in an injured condition and
40 6. The first is, what may be called,
was told by the deceased that the
‘culpable homicide of the first
accused persons had fired. Since
degree’. This is the gravest form of
there was wound on the chest of the
culpable homicide, which is defined
10 deceased he was taken to the
in Sec..300 as ‘murder’.
hospital. In his evidence Sanjeev
Kumar (PW-14) stated that in the 45 7. The second may be termed as
night of occurrence at about 9:30 ‘culpable homicide of the second
p.m. which was Diwali night he was degree’. This is punishable under the
15 playing cards with four others, first part of Sec..304.
Balkishan and the present appellant 8. Then, there is ‘culpable homicide
came there. There was exchange of 50 of the third degree’. This is the
hot words between the accused with lowest type of culpable homicide and
the deceased and the appellant fired the punishment provided for it is also
20 the shot and caused injuries on the the lowest among the punishments
chest of the deceased who died while provided for the three grades.
being taken to the hospital. There is 55 Culpable homicide of this degree is
no reason to discard the prosecution punishable under the second part of
version. Sec..304.
25 5. This brings to the crucial question 9. The academic distinction between
as to which was the appropriate ‘murder’ and ‘culpable homicide not
provision to be applied. In the 60 amounting to murder’ has always
scheme of the IPC culpable homicide vexed the Courts. The confusion is
is genus and ‘murder’ its specie. All caused, if Courts losing sight of the
30 ‘murder’ is ‘culpable homicide’ but true scope and meaning of the terms
not vice-versa. Speaking generally, used by the legislature in these
‘culpable homicide’ sans ‘special 65 sections, allow themselves to be
characteristics of murder is culpable drawn into minute abstractions. The
homicide not amounting to murder’. safest way of approach to the
interpretation and application of
20
 these provisions seems to be to keep bodily injury as is likely to cause
in focus the keywords used in the 40 death, and commits such act without
various clauses of Sec..299 and any excuse for incurring the risk of
Sec..300. The following comparative causing death or such injury as
5 provision will be helpful in aforesaid.
appreciating the points of distinction
between the two offences. 45 11. Clause (b) of Sec..299
corresponds with clauses (2) and (3)
§ 299. Culpable homicide:
of Sec.. 300. The distinguishing
10 Whoever causes death by doing feature of the mens rea requisite
10 an act (a) with the intention of
causing death, or (b) with the under 7 clause (2) is the knowledge
intention of causing such bodily 50 possessed by the offender regarding
injury as is likely to cause death, or the particular victim being in such a
(c) with the knowledge that he is peculiar condition or state of health
15 likely by such act to cause death, that the internal harm caused to him
commits the offence of culpable is likely to be fatal, notwithstanding
homicide.
55 the fact that such harm would not in
§ 300. Murder: Culpable homicide the ordinary way of nature be
20 is murder, if - sufficient to cause death of a person
(1) - the act by which the death is in normal health or condition. It is
caused is done with the intention of noteworthy that the ‘intention to
causing death, or – 60 cause death’ is not an essential
(2) - It is done with intention of requirement of clause (2). Only the
25 causing such bodily injury as the
intention of causing the bodily injury
offender knows to be likely to cause
the death of the person to whom the coupled with the offender’s
harm is caused, or – knowledge of the likelihood of such
(3). - If it is done with the intention 65 injury causing the death of the
30 of causing bodily injury to any particular victim, is sufficient to
person and the bodily injury intended bring the killing within the ambit of
to be inflicted is sufficient in the this clause. This aspect of clause (2)
ordinary course of nature to cause
death, or – is borne out by illustration (b)
35 (4) - If the person committing the act 70 appended to Sec..300. 10. Clause (b)
knows that it is so imminently of Sec..299 does not postulate any
dangerous that it must, in all such knowledge on the part of the
probability, cause death or such offender. Instances of cases falling

21
 under clause (2) of Sec.. 300 can be 35 degree of probability of death
where the assailant causes death by a resulting from the intended bodily
fist blow intentionally given knowing injury. To put it more broadly, it is
that the victim is suffering from an the degree of probability of death
5 enlarged liver, or enlarged spleen or which determines whether a culpable
diseased heart and such blow is 40 homicide is of the gravest, medium
likely to cause death of that particular or the lowest degree. The word
person as a result of the rupture of ‘likely’ in clause (b) of Sec.. 299
the liver, or spleen or the failure of conveys the sense of probable as
10 the heart, as the case may be. If the distinguished from a mere
assailant had no such knowledge 45 possibility.
about the disease or special frailty of
13. The words “bodily
the victim, nor an intention to cause
injury.......sufficient in the ordinary
death or bodily injury sufficient in
course of nature to cause death”
15 the ordinary course of nature to cause
mean that death will be the “most
death, the offence will not be murder,
50 probable” result of the injury, having
even if the injury which caused the
regard to the ordinary course of
death, was intentionally given. In
nature. For cases to fall within
clause (3) of Sec..300, instead of the
clause (3), it is not necessary that the
20 words ‘likely to cause death’
offender intended to cause death, so
occurring in the corresponding clause
55 long as the death ensues from the
(b) of Sec.. 299, the words “sufficient
intentional bodily injury or injuries
in the ordinary course of nature”
sufficient to cause death in the
have been used. Obviously, the
ordinary course of nature. Rajwant
25 distinction lies between a bodily
and Anr. v. State of Kerala, (AIR
injury likely to cause death and a
60 1966 SC 1874) is an apt illustration
bodily injury sufficient in the
of this point. In Virsa Singh v. State
ordinary course of nature to cause
of Punjab, (AIR 1958 SC 465),
death.
Vivian Bose, J. speaking for the
30 12. The distinction is fine but real Court, explained the meaning and
and if overlooked, may result in 65 scope of clause (3). It was observed
miscarriage of justice. The difference that the prosecution must prove the
between clause (b) of Sec.. 299 and following facts before it can bring a
clause (3) of Sec.. 300 is one of the case under Sec.. 300, “thirdly”. First,

22
 it must establish quite objectively, 35 was an intention to inflict that
that a bodily injury is present; particular bodily injury, that is to say
secondly the nature of the injury that it was not accidental or
must be proved. These are purely unintentional, or that some other kind
5 objective investigations. Thirdly, it of injury was intended. Once these
must be proved that there was an 40 three elements are proved to be
intention to inflict that particular present, the enquiry proceeds further
injury, that is to say, that it was not and, Fourthly, it must be proved that
accidental or unintentional or that the injury of the type just described
10 some other kind of injury was made up of the three elements set out
intended. Once these three elements 45 above is sufficient to cause death in
are proved to be present, the enquiry the ordinary course of nature.
proceeds further, and fourthly it must
15. This part of the enquiry is purely
be proved that the injury of the type
objective and inferential and has
15 just described made up of the three
nothing to do with the intention of
elements set out above was sufficient
50 the offender.” The learned Judge
to cause death in the ordinary course
explained the third ingredient in the
of nature. This part of the enquiry is
following words - “The question is
purely objective and inferential and
not whether the prisoner intended to
20 has nothing to do with the intention
inflict a serious injury or a trivial one
of the offender.
55 but whether he intended to inflict the
14. The ingredients of clause injury that is proved to be present. If
“Thirdly” of Sec.. 300, IPC were he can show that he did not, or if the
brought out by the illustrious Judge totality of the circumstances justify
25 in his terse language as follows: “To such an inference, then of course, the
put it shortly, the prosecution must 60 intent that the Sec..requires is not
prove the following facts before it proved. But if there is nothing
can bring a case under Sec.. 300, beyond the injury and the fact that
“thirdly”. First, it must establish, the appellant inflicted it, the only
30 quite objectively, that a bodily injury possible inference is that he intended
is present. Secondly, the nature of the 65 to inflict it. Whether he knew of its
injury must be proved. These are seriousness or intended serious
purely objective investigations. consequences, is neither here or
Thirdly, it must be proved that there there. The question, so far as the

23
 intention is concerned, is not whether present was the injury that was
he intended to kill, or to inflict an 35 intended to be inflicted.
injury of a particular degree of
17. Thus, according to the rule laid
seriousness but whether he intended
down in Virsa Singh’s case (supra),
5 to inflict the injury in question and
even if the intention of accused was
once the existence of the injury is
limited to the infliction of a bodily
proved the intention to cause it will
40 injury sufficient to cause death in the
be presumed unless the evidence or
ordinary course of nature, and did not
the circumstances warrant an
extend to the intention of causing
10 opposite conclusion.”
death, the offence would be murder.
16. These observations of Vivian Illustration (c) appended to Sec..300
Bose, J. have become locus 45 clearly brings out this point. Clause
classicus. The test laid down by (c) of Sec..299 and clause (4) of Sec..
Virsa Singh’s case (supra) for the 300 both require knowledge of the
15 applicability of clause “Thirdly” is probability of the act causing death.
now ingrained in our legal system It is not necessary for the purpose of
and has become part of the rule of 50 this case to dilate much on the
law. Under clause thirdly of Sec.. distinction between these
300 IPC, culpable homicide is corresponding clauses. It will be
20 murder, if both the following sufficient to say that clause (4) of
conditions are satisfied: i.e. (a) that Sec.. 300 would be applicable where
the act which causes death is done 55 the knowledge of the offender as to
with the intention of causing death or the probability of death of a person
is done with the intention of causing or persons in general as distinguished
25 a bodily injury; and (b) that the from a particular person or persons –
injury intended to be inflicted is being caused from his imminently
sufficient in the ordinary course of 60 dangerous act, approximates to a
nature to cause death. It must be practical certainty. Such knowledge
proved that there was an intention to on the part of the offender must be of
30 inflict that particular bodily injury the highest degree
which, in the ordinary course of
of probability, the act having been
nature, was sufficient to cause death,
65 committed by the offender without
viz., that the injury found to be
any excuse for incurring the risk of

24
 causing death or such injury as 35
aforesaid.
18. The above are only broad
guidelines and not cast iron
5 imperatives. In most cases, their
observance will facilitate the task of
the Court. But sometimes the facts 40
are so intertwined and the second and
the third stages so telescoped into
10 each other that it may not be
convenient to give a separate
treatment to the matters involved in
the second and third stages. 45
19. The position was illuminatingly
15 highlighted by this Court in State of
Andhra Pradesh v. Rayavarapu
Punnayya and Anr. (1976 (4) SCC
382), Abdul Waheed Khan @
Waheed and Ors. v. State of Andhra
50
20 Pradesh (JT 2002 (6) SC 274),
Augustine Saldanha v. State of
Karnataka (2003 (10) SCC 472),
Thangaiya v. State of Tamil Nadu
(2005 (9) SCC 650) and Sunder Lal
25 v. State of Rajasthan (2007 (10) SCC
371). 20. Considering the part of the
55
body where the bullet fired hit the
deceased, in our considered opinion
the appropriate conviction would be
30 under Sec..304 Part II IPC.

60

25
 4. 35 whether Sec..34, Indian Penal
Anda & Ors. v. The State of Code was properly invoked. In our
Rajasthan opinion, leave was not granted on the
latter point which does not present an
AIR 1966 SC 148, 1966 CriLJ 171
y difficulty at all but on the question
5 9 March, 1965
40 whether the conviction for murder is
(M Hidayatullah; K Wanchoo, M H
justifiable.
Mudholkar, S Sikri, JJ)

1. The appellants, who are four in 2. The incident took place on June
number, have been convicted by the 29, 1961, at about 5 or 5-30 a.m. at a
10 Rajasthan High Court under Sec..302 village called Hindas. One Bherun
read with Sec..34 of the Indian Penal 45 son of Girdhari Jat was assaulted by
Code and sentenced to imprisonment a number of persons and received
for life. Previously they were numerous injuries. He died as a result
convicted along with three others by on the same day. Prosecution proved
15 the Sessions Judge, Merta satisfactorily that Bherun and his
under Sec..302 but read 50 father Girdhari were on inimical
with Sec..149 of the Code. On the terms with the appellants and that
acquittal of the others the change in certain criminal proceedings were
the Sec.. was made. The appellants going on between them. The
20 were charged in the alternative and prosecution further proved that
no question of a new charge arises. 55 Bherun had gone to Hindas with a
Special leave was granted to the servant to attend to his fields there.
appellants limited to the question He was on his way to the fields,
whether Sec..302 read when he passed the house of Bhagu
25 with Sec..34 was applicable to the (one of the original accused but since
facts of the case. At the hearing 60 acquitted) and was caught hold of by
before us Mr. Prem claimed that Anda (appellant No. 1) and Roopla
under the leave he was entitled to (appellant No. 2) and was assaulted.
argue that the offence disposed by They and the other accused, dragged
30 the evidence did not fall him inside the house and beat him
within Sec..302, Indian Penal Code, 65 severely. Bherun tried hard to avoid
while Mr. Brij Bans Kishore being dragged inside the house and
contended that the only point on clung desperately to the door jamb
which leave was granted was but Anda and Roopla struck him on

26
 his hands with their sticks to make 35 of over thirty wounds and injuries.
him release his hold. His cries There were fractures of the right and
attracted the neighbors and one of left ulnas, second and third
them Moda (P. W. 8) attempted a metacarpal bones of the right hand
5 rescue but was beaten off. The and second metacarpal bone of the
evidence, proving the presence and 40 left hand, compound fractures of the
participation of these appellants in right tibia and right fibula, the tibia
the assault has been concurrently being fractured at two places and
accepted by the High Court and the fracture of the left fibula. These
10 Sessions Judge and the findings on fractures lay under large bruises and
this part of the case must be 45 lacerated wounds. Mr. Sablok could
considered as established. There can specify nine such bruises in addition
be no question that the appellants to multiple bruises running in
were actuated by a common intention different directions on the right
15 which must have been the result of a buttock which he was unable to
prior concert, regard being had to the 50 count. There were as many as sixteen
time, and the place and the lacerated wounds on the arms and
circumstances of the visit of legs and a hematoma on the right
Bherun. Sec..34, Indian Penal Code, forehead and a big bruise on the
20 as we shall show presently, was thus middle of the chest. When Bherun
rightly invoked and that aspect of the 55 was admitted in the hospital he was
case furnishes no difficulty whatever. bleeding profusely from his injuries
and the right tibia which was
3. Bherun was examined by Mr. C.L. fractured at two places was splintered
Sablok, Medical Officer in-charge, and the broken ends were protruding.
25 Merta City Dispensary and he is 60 At the site of other injuries muscle
witness No. 4 for the prosecution. tags were protruding out of the
Mr. Sablok found Bherun in great wounds. At the autopsy the lungs
pain and sinking. He noted the were pale and the heart empty which
injuries observed by him in his report showed that enormous quantity of
30 (Ex. P. 1) which he was able to verify 65 blood must have been lost. The
more fully when he performed the opinion of Mr. Sablok on the cause
autopsy after Bherun's death. His of death was:
second report is Ex. P. 2. The two
examinations revealed the existence

27
 "In my opinion the cause of death is The offence involves the doing of an
shock and Syncope due to multiple act (which term includes illegal
injuries. All these injuries omissions) (a) with the intention of
collectively can be sufficient to causing death or (b) with the
5 cause death in the ordinary course 35 intention of causing such bodily
of nature. But individually no injury injury as is likely to cause death or
was sufficient in the ordinary course (c) with the knowledge that the act is
of nature to cause death." likely to cause death. If death is
caused in any of these three
The argument of Mr. Prem is that the 40 circumstances, the offence of
10 offence is not murder but culpable culpable homicide is said to be
homicide not amounting to murder. committed. The existence of the three
He contends that this case cannot be circumstances (a), (b) and (c)
brought under any of the clauses distinguishes homicide which is
of Sec.. 300 which turn the lesser 45 culpable from homicides which are
15 offence into murder. Mr. Brij Bans lesser offences or which are
Kishore says that Clauses (1) and (3) excusable altogether. Intent and
of Sec.. 300 apply to this case. The knowledge in the ingredients of the
question thus is what offence was Sec.. postulate the existence of a
committed ? 50 positive mental attitude and this
mental condition is the special mens
20 4. The offence of culpable homicide
rea necessary for the offence. The
is defined by Sec.. 299. It reads:
guilty intention in the first two
§ 299. Culpable Homicide. conditions contemplates the intended
55 death of the person harmed or the
Whoever causes death by doing an intentional causing of an injury likely
act with the intention of causing to cause his death. The knowledge in
25 death, or with the intention of the third condition contemplates
causing such bodily injury as is knowledge of the likelihood of the
likely to cause death, or with the 60 death of the person.
knowledge that he is likely by such
act to cause death, commits offence 5. Sec..300 tells us when the offence
30 of culpable homicide." is murder and when it is culpable
homicide not amounting to
murder. Sec..300 begins by setting

28
 out the circumstances when culpable 3rdly.-- If it is done with the
homicide turns into murder which is intention of causing bodily injury to
punishable under Sec.. 302 and the any person and the bodily injury
exceptions in the same Sec.. tell us 35 intended to be inflicted is sufficient
5 when the offence is not murder but in the ordinary course of nature to
culpable homicide riot amounting to cause death, or--
murder punishable under Sec.. 304.
Murder is an aggravated form of 4thly.-- If the person committing the
culpable homicide. The existence of act knows that it is so imminently
10 one of four conditions turns culpable 40 dangerous that it must, in all
homicide into murder while the probability, cause death, or such
special exceptions reduce the offence bodily injury as is likely to cause
of murder again to culpable homicide death, and commits such act without
not amounting to murder. We are not any excuse for incurring the risk of
15 concerned with the exceptions in this 45 causing death or such injury as
case and we need not refer to them. aforesaid."
We now refer to the circumstances
Taking the four clauses one by one
which turn culpable homicide into
we find that under the first clause
murder. They read:
of Sec.. 300 culpable homicide is
20 § 300. Murder. 50 murder when the act by which death
is caused is done with the intention
Except in the eases hereinafter of causing death. This clause
excepted culpable homicide is reproduces the first part of Sec.. 299.
murder, if the act by which the death An intentional killing is always
is caused is done with the intention 55 murder unless it comes within one of
25 of causing, death, or-- the special exceptions in Sec.. 300. If
an exception applies, it is culpable
2ndly.-- If it is done with the homicide not amounting to murder. It
intention of causing such bodily is the presence of a special exception
injury as the offender knows to be 60 in a given case which reduces the
likely to cause the death of the offence of murder to culpable
30 person to whom the harm is caused, homicide not amounting to murder
or-- when the act by which death is

29
 caused is done with the intention of blow. A is guilty of murder, although
causing death. 35 the Wow might not have been
sufficient in the ordinary course of
6. The 2ndly in Sec..300 mentions nature to cause the death of a person
one special circumstance which in a sound state of health. But if A,
5 renders culpable homicide into not knowing that Z is laboring under
murder. Putting aside the exceptions 40 any disease, gives him such a blow
in Sec..300 which reduce the offence as would not in the ordinary course
of murder to culpable homicide not of nature kill a person in a sound
amounting to murder, culpable state of health, here A, although he
10 homicide is again murder if the may intend to cause bodily injury, is
offender does the act with the 45 not guilty of murder, if he did not
intention of causing such bodily intend to cause death or such bodily
injury which be knows to be likely to injury as in the ordinary course of
cause the death of the person to nature would cause death."
15 whom harm is caused. This
knowledge must be in relation to the 7. The third clause views the matter
person harmed and the offence is 50 from a general stand point. It speaks
minder even if the injury may not be of an intention to cause bodily injury
generally fatal but is so only in his which is sufficient in the ordinary
20 special case, provided the knowledge course of nature to cause death. The
exists in relation to the particular emphasis here is on the sufficiency of
person. If the element of knowledge 55 the injury in the ordinary course of
be wanting the offence would not be nature to cause death. The
murder but only culpable homicide sufficiency is the high probability of
25 not amounting to murder or even a death in the ordinary way of nature
lesser offence. Illustration (b) and when this exists and death
appended to this clause very clearly 60 ensues and the causing of such injury
brings out the point. It reads: is intended the offence is murder.
Sometimes the nature of the weapon
"(b) A, knowing that Z is laboring used, sometimes the part of the body
30 under such a disease that a blow is on which the injury is caused, and
likely to cause his death, strikes him 65 sometimes both are relevant. The
with the intention of causing bodily determinant factor is the intentional
injury, Z dies in consequence of the injury which must be sufficient to

30
 cause death in the ordinary course of committed with the knowledge that
nature. If the intended injury cannot death might be the probable result
be said to be sufficient in the 35 and without any excuse for incurring
ordinary course of nature to cause the risk of causing death or injury as
5 death, that is to say, the probability is likely to cause death, the offence is
of death is not so high, the offence murder. This clause, speaking
does not fall within murder but generally, covers cases in which
within culpable homicide not 40 there is no intention to cause the
amounting to murder or something death of any one in particular.
10 less. The illustration appended to the Illustration (d) appended to this
clause 3rdly reads: clause reads:

"(c) A intentionally gives Z a sword- "(d) A without any excuse fires a

cut or club-wound sufficient to cause 45 loaded cannon into a crowd of
the death of a man in the ordinary persons and kills one of them. A is
15 course of nature. Z dies in guilty of murder, although he may
consequence. Here A is guilty of not have had a premeditated design
murder, although he may not have to kill any particular individual."
intended to cause Z's death."
50 9. Now the word 'act' in all the
The sufficiency of an intentional clauses
20 injury to cause death in the ordinary of Sec..299 or Sec..300 denotes not
way of nature is the gist of the clause only a single act but also a series of
irrespective of an intention to cause acts taken as a single act. When a
death. Here again, the exceptions 55 number of persons participate in the
may bring down the offence to commission of a criminal act the
25 culpable homicide not amounting to responsibility may be individual that
murder. is to say, that each person may be
guilty of a different offence or all of
8. The clause 4thly comprehends 60 them may be liable for the total result
generally the commission of produced. This depends on the
imminently dangerous acts which intention and knowledge of the
30 must in all probability cause death or participants. The subject is then
cause such bodily injury as is likely covered by Sec..
to cause death. When such an act is

31
 34, Sec..35 and Sec..38 of the Code. The first two sections create
They may be read at this stage: responsibility for the total result. The
third creates individual responsibility
"34. Acts done by several persons in only. Sec.. 34 applies where there is a
furtherance of common intention. 35 common intention and for a criminal
act done in furtherance of the
5 When a criminal act is done by
common intention of all, everyone is
several persons, in furtherance of the
equally responsible. Sec..35 requires
common intention of all, each of
the existence of the knowledge or
such persons is liable for that act in
40 intent in each accused before he can
the same manner as if it were done
be held liable if knowledge or intent
10 by him alone".
is necessary to make the act criminal.
"35. When such an act is criminal by Thus if two persons beat a third and
reason of its being done with a one intends to cause his death and the
criminal knowledge or intention. 45 other to cause only grievous injury
and there is no common intention,
When an act, which is criminal only their offences will be different. This
15 by reason of its being done with a would not be the case if the offence
criminal knowledge or intention, is is committed with a common
done by several persons, each of such 50 intention or each accused possessed
persons who joins in the act with the necessary intention or
such knowledge or intention is liable knowledge. Sec..38 provides for
20 for the act in the same manner as if different degrees of responsibility
the act were done by him alone with arising from the same criminal act.
that knowledge or intention. 55 The illustration brings out the point
quite clearly:
"38. Persons concerned in criminal
act may be guilty of different "A attacks Z under such
25 offences. circumstances, of grave provocation
that his killing of Z would be only
Where several persons are engaged 60 culpable homicide not amounting to
or concerned in the commission of a murder. B having ill-will towards Z
criminal act, they may be guilty of and intending to kill him, and not
different offences by means of that having been subject to the
30 act." provocation, assists A in killing Z.

32
 Here, though A and B are both 35 intention of all it is clear that the
engaged in causing Z's death, B is injuries intended to be caused were
guilty of murder, and A is guilty only sufficient to cause his death in the
of culpable homicide." ordinary course of nature even if it
cannot be said that his death was
5 We may now apply these principles 40 intended. This is sufficient to bring
to the facts of the present case. In the the case within 3rdly of Sec..300.
present case the accused were
obviously present at the spot by 10. Our attention was drawn to a
previous arrangement. The time and decision of the Gujarat High Court
10 the place and the errand on which reported in Oswal Danji Tejsi v.
Bherun was engaged clearly show 45 State, . The accused there were
that they intended to waylay and beat convicted under Sec..325 read
Bherun. This intent was obviously with Sec..34, Indian Penal Code. In
shared and was the result of prior that case twenty-one injuries were
15 arrangement. The question is whether caused on the person of the victim of
they can be brought within any one 50 which only two injuries, which were
of the three clauses of Sec..300. The caused with an iron-ringed stick,
injuries were not on a vital part of the were fatal. There were three accused
body and no weapon was used which and only one such stick. The learned
20 can be described as especially Judges observed:
dangerous. Only lathis were used. It
cannot, therefore, be said safely that 55 "......Having regard to the paucity of
there was an intention to cause the the number of fatal injuries, it would
death of Bherun within the first not be proper to say the three accused
25 clause of Sec.. 300. At the same time, persons were necessarily actuated
it is obvious that his hands and legs with an intention of causing death of
were smashed and numerous braises 60 Rana....".
and lacerated wounds were caused.
It appears that the Assistant
The number of injuries shows that
Government Pleader conceded that
30 everyone joined in beating him. It it
the common intention was not to
also quite clear that the assailants
commit murder and that the offence
aimed at breaking his arms and legs.
65 was culpable homicide not
Looking at the injuries caused to
amounting to murder, which he said
Bherun in furtherance of the common

33
 was the appropriate Sec.. to apply. 35 "This injury may or may not be
The learned Judges did not agree but described as sufficient in the ordinary
changed the conviction from Sec.. course of nature to cause death and
325, Indian Penal Code to Sec.. curiously enough when the Doctor
5 326, Indian Penal Code. The was examined before the learned
statement of the learned Judges 40 Sessions Judge no questions were
which we have quoted from their addressed to him in this behalf. On
judgment, with due respect, is not the evidence as it stands it is
adequate. They seem to have impossible for us to come to the
10 considered the matter only from the conclusion that the common
view point of Clause (1) of Sec.. 300. 45 intention of the appellants was to
murder the deceased. The only
11. We may refer to two cases of this conclusion to which we can come on
Court. In Brij Bhukhan v. State of the record is that the common
Uttar Pradesh, , there was no injury intention of the appellants in
15 sufficient to cause death in the 50 pursuing the deceased was to cause
ordinary course of nature. It was, him grievous hurt......".
however, pointed out that it was open
to the Court to look into the nature of The injury itself was not proved to be
the injuries and if they were sufficient in the ordinary course of
20 cumulatively sufficient in the nature to cause death and, in our
ordinary course of nature to cause 55 opinion, the case is distinguishable.
death, clause 3rdly of Sec.. 300 was
applicable". We have considered the 12. No case can, of course, be an
matter from this point of view. In authority on facts. In the last case
25 Criminal Appeal No. 1 of 1957, inference was drawn from facts
dated 14-3-1957 (SC), Chandgi v. which were different. It is always a
State of Punjab, there was one 60 question of fact as to whether the
serious injury which was inflicted accused shared a particular
with a gandasi and had all but knowledge or intent. One must look
30 severed the arm of the victim from for a common intention, that is to
his body. This Court did hold the say, some prior concert and what that
accused guilty under Sec.. 65 common intention is. It is not
302/34, Indian Penal Code, necessary that there should be an
observing: appreciable passage of time between

34
 the formation of the intent and the act 35 these circumstances It cannot be said
for common intention may be formed that the offence was not murder but
at any time. Next one must look for only culpable homicide not
the requisite ingredient that the amounting to murder.
5 injuries which were intended to be
caused were sufficient to cause death
in the ordinary course of nature. Next 40
we must see if the accused possessed
the knowledge that the injuries they
10 were intending to cause were
sufficient in the ordinary course of
nature to cause death. When these
circumstances are found and death is,
in fact, caused by injuries which are 45
15 intended to be caused and which are,
sufficient in the ordinary course of
nature to cause death the resulting
offence of each participant is murder.

13. In this case the accused beat

20 Bherun inside a house after dragging 50
him there. The number of injuries
shows, that all took part His arms
and legs were smashed and many
braises and lacerated wounds were
25 caused on his person. The injuries
intended to be caused were sufficient
in the ordinary course of nature to 55
cause death. The assault was thus
murderous and it must have been
30 apparent to all the assailants that the
injuries they were inflicting in
furtherance of the common intention
of all were sufficient in the ordinary
course of nature to cause death. In 60

35
 5. But this task surely becomes an
undaunted one when the accused
Ajit Singh v. State of Punjab commits culpable homicide/murder
AIR 1991 SC 1738 40 but the circumstances disclose many
a times that it is done without
premeditation or pre-planning, may
5 HARJIT SINGH BEDI,J. be to cause grievous hurt, yet it is so
grave in nature that it results into
1. The Indian Penal Code was 45 death and the role of the factum
enacted in the year 1860 under which causing death without premeditation
the offences within the territory of becomes a secondary consideration
India have been tried ever since it due to which the decision of the
10 was enacted dealing with countless courts in such cases often hinges on
number of cases leading either to 50 discretion while considering whether
acquittal or conviction. Yet, the task the case would fall under Sec..302
of the decision making I.P.C. or it would be under 304 Part I
authorities/courts whether an offence or even Part II, I.P.C.
15 of culpable homicide is murder or
culpable homicide does not amount 2. On a plain reading of Sec.. 299,
to murder in the prevailing facts and 55 Sec..300, Sec..302 and Sec..304 of
circumstances of the case is a the Indian Penal Code, it appears that
perennial question with which the a given case can be conveniently
20 courts are often confronted. We are classified into two categories viz.
well aware in view of Sec..300 of the culpable homicide amounting to
I.P.C. that all murders are culpable
60 murder which is Sec..302 I.P.C. or
homicide but all culpable homicide
does not amount to murder and this culpable homicide not amounting to
25 leads the courts quite frequently to murder which is Sec..304 I.P.C. But
consider as to whether an accused when it comes to the actual
charged of an offence of culpable application of these two sections in a
homicide is guilty of murder or he 65 given case, the courts are often
has committed culpable homicide not confronted with a dilemma as to
30 amounting to murder. whether a case would fall under
Sec..302 I.P.C. or would fall under
When the evidence discloses a clear Sec..304 I.P.C. Many a times, this
case of murder or makes out a
70 gives rise to conflicting decisions of
finding of culpable homicide not
one court or the other giving rise to
amounting to murder, the task of the
35 courts to record conviction or the popular perception among
acquittal is generally an easy one. litigants and members of the Bar that

36
 a particular court is an acquitting the charge and conviction under
court or is a convicting one. This 40 Sec..302/34 I.P.C.
confusion or dilemma often emerges
in a case when the question for 4. The prosecution case recorded in
the First Information Report which
5 consideration is whether a given case
led to the conviction of the appellant-
would fall under Sec..302 I.P.C. or
Ajit Singh was lodged on 22.10.1996
Sec..304 I.P.C. when it is difficult to 45 on the basis of the complaint made
decipher from the evidence whether by Jagdish Kumar, PW-6 who stated
the intention was to cause merely that he was running a private middle
10 bodily injury which would not make school in village Terkiana and on the
out an offence of murder or there was date of the incident he was not
clear intention to kill the victim 50 feeling well due to stomach upset and
making out a clear case of an offence hence had come home early at about
of murder. 12.30 noon. He (PW-6) further stated
that he had gone to attend the call of
15 3. In the instant appeal by special nature towards the field of the
leave, once again the aforesaid 55 accused- appellant Ajit Singh who
situation arises which has been had planted Kinnu plants in his field.
preferred against the judgment and One Laxmi Devi (the deceased) and
order dated 11.3.2008 passed by the her son Rajiv @ Raju (PW- 7) along
20 Division Bench of the High Court of with Nirmal Kaur were cutting
Punjab and Haryana in Criminal 60 fodder in the field of the appellant-
Appeal No.300-DB of 1999 whereby Ajit Singh where Ajit Singh and his
the High Court had been pleased to servant Anil Kumar were also
dismiss the appeal and thus upheld working. According to the informant
25 the order of the Additional Sessions PW-6, the appellant was having an
Judge, Hoshiarpur convicting the 65 altercation with the deceased Laxmi
appellant- Ajit Singh for offence Devi as the appellant complained that
under Sec..302, I.P.C. sentencing she had caused damage to his field
him to undergo rigorous which the PW-6 heard while he was
30 imprisonment for life as also to pay a proceeding towards the field. Soon
fine of Rs.2,000/- in default of which 70 the appellant and the deceased started
he is to undergo further abusing each other due to which the
imprisonment for six months. appellant got enraged and asked his
However, the High Court while servant Anil Kumar to bring Kassi
35 upholding the conviction and (spade) to finish them once for all. At
sentence of the appellant herein 75 this Anil Kumar brought the Kassi
under Sec..302 I.P.C., was pleased to (spade) with which he was digging
acquit the co-accused-Anil Kumar of the plants. But the deceased Laxmi

37
 Devi continued hurling abuses. The 40 converted into a case under
appellant-Ajit Singh is then alleged Sec..302Sec../34, I.P.C.
to have taken the Kassi from Anil
Kumar and asked him to catch hold 5. The doctor who conducted post-
5 of her so that he may do away with mortem found the following injuries
her life. The deceased was given a on the body of the deceased:
push due to which she fell down on
the ground in a straight posture and 45 "(i) 6 cm long stitched wound
Anil Kumar caught her by her arms. bearing 13 black cotton stitches on
10 Ajit Singh is then alleged to have front left side of bearing part of neck
given two blows with the Kassi extending from the middle of left
(spade) on the neck of the deceased lower jaw up to middle of neck,
after which Nirmal Kaur and Rajiv 50 muscle deep and obliquely placed.
raised alarm. PW-6 thereafter claims
15 to have run towards the appellant but (ii) 3 cm long stitched wound bearing
the appellant went towards his kothi 7 black cotton stitches placed
situated in the garden along with obliquely and 2 cm below injury no.1
spade smeared with blood and Anil on its lateral half and muscle deep.
Kumar too ran away from the spot.
55 (iii) 7 cm long stitched wound
20 Further case of the prosecution is that
bearing 9 black cotton stitches on
the body of the Laxmi Devi
front and right side of neck, 4 cm
(deceased) was smeared with blood
below middle of lower jaw, obliquely
and Rajiv- PW-7 ran towards
placed and muscle deep.
government colony raising alarm as a
25 consequence of which the entire 60 (iv) 6 cm long stitched wound
village collected at the place of bearing 12 black cotton stitches
incident and a conveyance was placed horizontally on front of neck
arranged on which the deceased was in the middle and lateral side
taken to Civil Hospital, Dasuya and extending across the middle and 1 cm
30 PW-6 also went to the police station 65 to the right on dissection, underlying
to lodge the formal report. But S.I. subcutaneous tissue and muscle are
Samsher Singh (PW-15) met him on clear cut and gapping was present.
the way and recorded his statement
on the basis of which a formal First Underlying laryngopharynx was
35 Information Report was lodged for repaired with the nylon stitches. On
offence under Sec..307/Sec..34, 70 removal of stitches the wound was 5
I.P.C. and PW-15 took up the cm x 2 cm surrounding muscle on the
investigation. Subsequently, as lateral side were also cut.
Laxmi Devi died, the case was

38
 (v) 3 cm long curved stitched wound 35 Hoshiarpur who was pleased to
on left side and 2 cm below injury convict the appellant and the co-
No.4 wearing 4 black cotton stitches accused Anil Kumar (since acquitted)
and was skin deep. under Sec..302/34 I.P.C. and
sentenced them as already indicated
5 (vi) Brownish scabbed linear 40 hereinafter. As already stated, the
superficial abrasion 6 cm long on left conviction and sentence of the
side of neck and 1 cm below injury appellant Ajit Singh was maintained
no.5. under Sec..302 I.P.C. but the co-
accused Anil Kumar was acquitted.
(vii) Brownish scabbed linear curved 45 Hence, this appeal has now been
10 abrasion 6 cm long and 2 cm below preferred by the sole appellant Ajit
injury No. 6. Singh and this court is seized with
consideration of the question whether
(viii) Incised wound 3 cm x 2 cm in the conviction and sentence of the
the lower part of the neck in the mid 50 accused-appellant Ajit Singh is fit to
line. 6 cm above upper end of be sustained or not.
15 sternum underlying muscle cut and
there is hole 1.5 cm x 1.5 cm in the 7. In so far as the genesis and manner
interior wall of trachea (Tracheotomy of occurrence and the factum of
wound). death of deceased Laxmi Devi is
55 concerned, the counsel for the parties
(ix) 5 cm long stitched wound on the have been heard at some length and
20 lateral half of right eyebrow wearing the evidence have been scrutinized
5 stitches on dissection margins were but I am unable to accept the
clear cut and it was bone deep." contention that the incident did not
60 take place in the manner as alleged
In the opinion of the doctor the cause by the prosecution and I fully agree
of death was due to throat cut injury, with the findings recorded by the
25 cerebral edema and nasal ganlia courts below that the deceased Laxmi
which were ante mortem and Devi died in the manner and at the
sufficient to cause the death in the 65 place as alleged by the prosecution.
ordinary course of nature.
8. The only ground which now needs
6. After compliance of the due to be considered in this appeal is
30 formalities of investigation, whether on the existing facts and
submission of charge sheet and circumstances emerging out of the
committal proceeding, the trial of the 70 genesis, manner and place of
two accused persons was conducted occurrence, the conviction of the
by the Additional Sessions Judge, appellant is fit to be sustained under

39
 Sec..302, I.P.C. or it would be a case Singh is fit to be sustained under
of conversion of conviction and Sec..302 of the I.P.C. or it would be a
sentence under Sec..304 Part- fit case of altering the conviction and
40 sentence from 302 I.P.C. to 304
I of the I.P.C. Although, we are all Part-I. In this context, it is noticed
5 aware of the ingredients of Sec..300 that the deceased Laxmi Devi and her
defining culpable homicide son Rajiv @ Raju PW-7 along with
amounting to murder, it would be Nirmal Kaur were cutting fodder
worthwhile to recollect the 45 from the field of appellant-Ajit Singh
exceptions therein specially when Ajit Singh and Laxmi Devi
10 exception 4 to Sec..300 I.P.C. which started quarrelling with each other as
lays down when culpable homicide Ajit Singh complained that they have
does not amount to murder and may been illegally entering into his field
be quoted for facility of reference: 50 for cutting fodder causing damage to
his field and spoiling the Kinnu
"Exception 4 to Sec..300. -Culpable crops.
15 homicide is not murder if it is
committed without premeditation in Even as per the case of the
a sudden fight in the heat of passion prosecution, the deceased started to
upon a sudden quarrel and without 55 abuse Ajit Singh which provoked
the offender having taken undue him to order his servant Anil Kumar
20 advantage or acted in a cruel or to bring Kassi (spade) to finish them.
unusual manner." The place of incident thus admittedly
is of Ajit Singh wherein Ajit Singh
9. It is undoubtedly true that 60 ordered Anil Kumar to bring Kassi
application of Exception 4 depends and then asked him to catch hold of
upon the facts and evidence in a Laxmi Devi so that he may do away
25 given case and although there are with her life.
innumerable case laws and
Ajit Singh after giving the deceased a
commentaries on the subject, the
65 push, is alleged to have given two
courts more often than not have to
blows on the neck of the deceased at
keep wondering into the wilderness
which the informant PW-7 raised an
30 of facts as to whether a given case
alarm shouting "mar ditta mar ditta".
would fall under Sec..302, I.P.C. or
PW-6 thereafter chased the appellant
would fall under Sec..304 Part-I or II
70 who is said to have run towards the
of the I.P.C.
accused-appellant but the appellant
10. The question under the facts of went towards his kothi situated in the
35 this case once again arises whether same garden along with the spade
the conviction of the appellant-Ajit smeared with blood and his servant

40
 Anil Kumar (since acquitted) also result of pre-planning or pre-
ran away from the spot. The meditated assault and the same did
deceased thereafter was taken to the 40 not result in instantious death of the
hospital and after three days of deceased but she was taken to the
5 treatment died on 25.10.1996 at hospital for treatment where she
about 4.35 p.m. succumbed to the injury after four
days of the incident.
11. Thus, from the prosecution story
itself it emerges that when the 45 13. Thus, the appellant no doubt
deceased was cutting the grass for inflicted the injury on the deceased
10 fodder in the field of Ajit Singh, Ajit with the intention of causing such
Singh was not armed with any bodily injury which could result in
weapon and it is only when the her death and in that view of the facts
deceased hurled filthy abuses to the 50 and circumstance, knowledge will
appellant, he directed his servant have to be attributed to him that he
15 Anil Kumar to bring a Kassi and inflicted injury on the deceased to
ordered him to catch hold of the cause death of the victim which was
deceased after which he gave two sufficient in the ordinary course of
blows on the neck of the deceased as 55 nature to cause death. In that event,
a result of which she died on the 4th he although will have to be held
20 day of the incident. guilty of the offence of murder in
view of the ingredients of the offence
12. Thus on perusal of the evidence given out under Sec..300 of the
on record, it is clear that the incident 60 I.P.C., it cannot be ruled out that the
happened on the spur of the moment case of the appellant in view of the
and was not a premeditated assault genesis and manner of occurrence
25 on the deceased. would fall under exception 4 of
Sec..300 and hence would be liable
Nevertheless, the appellant had 65 for conviction under Sec..304 Part-I
inflicted grievous injury on the neck for the reason that it cannot be held
of the deceased but she did not die with certainty that he undoubtedly
instantly and was taken to the had the intention to kill and not
30 hospital where treatment was given merely to cause grievous hurt. In
to her for three days and finally she 70 support of this view, it would be
succumbed to the injury. Hence, it relevant to refer to the case of Patel
can be logically and reasonably Rasiklal Becharbhai Vs. State of
inferred that the accused- appellant Gujarat, AIR 1992 SC 1150, wherein
35 although inflicted grievous injury on this Court had been pleased to hold
the neck of the deceased and gave 75 that inflictment of the injury on the
two blows, the assault was not the vital part of the body with the

41
 agricultural instrument by the Devi had been cutting grass for
enraged accused in a sudden quarrel 40 fodder in the field of the appellant-
cannot be held to have been caused Ajit Singh and when Ajit Singh
intentionally. reprimanded the deceased and her
companion not to spoil his Kinnu
5 14. In order to hold whether an crop, the deceased started altercation
offence would fall under Sec..302, or 45 with the appellant and abused him
304 Part-I of the I.P.C., the courts which provoked the appellant-Ajit
have to be extremely cautious in Singh to order his companion Anil
examining whether the same falls Kumar (since acquitted) to bring
10 under Sec..300 of the I.P.C. which Kassi (spade) which instruction was
states whether a culpable homicide is 50 carried out by Anil Kumar and
a murder, or it would fall under its thereafter Ajit Singh inflicted two
five exceptions which lays down blows on the deceased Laxmi Devi.
when culpable homicide is not However, she did not die instantly
15 murder and in this category further and was taken to the hospital where
lays down that culpable homicide is 55 she underwent treatment for four
not murder if the offender whilst days and finally succumbed to the
deprived of the power of self-control injuries. From this it can be safely
by giving sudden provocation causes inferred that although the appellant-
20 the death of the person who gave the Ajit Singh had the intention and
provocation, or causes the death of 60 knowledge to cause grievous injury
any other person by mistake or on the deceased which could have
accident. resulted into the death of the
deceased, yet it cannot be inferred
15. While examining the case of the without doubt that the intention of
25 appellant in the light of the settled 65 the appellant-Ajit Singh was
legal position that culpable homicide necessarily to cause death and not
would not amount to murder if the merely to cause grievous hurt as he
offender was deprived of the power did not inflict repeated blows on the
of self-control on account of grave deceased and the deceased in fact had
30 and sudden provocation, I am of the 70 survived for four days after the
view that the appellant's case will assault. In addition to this, it has also
have to be treated to be a case falling come in evidence that PW-
under the 4th exception of Sec..300 6/informant had chased the appellant
and hence would be a case under but the appellant did not pursue by
35 Sec..304 Part I of the Indian Penal 75 entering into further scuffle with the
Code for more than one reason prosecution party.
deduced from the evidence on record.
In the first place, the deceased Laxmi

42
 Besides this, the case of the 40
prosecution regarding common
intention to commit murder already
stands negatived by the High Court
5 vide the impugned judgment and
45
order as the plea of common
intention

10 50

15 55

20 60

25 65

30 70

35 75

43
 6. 5. There was only one injury on
Virsa Singh v. The State of Punjab 35 Khem Singh and both Courts are
1958 AIR 465, 1958 SCR 1495 agreed that the appellant caused it. It
was caused as the result of a spear
Criminal Appeal No. 90 of 1957. thrust and the doctor who examined
Khem Singh, while he was still alive,
5 BOSE J.- 40 said that it was " a punctured wound
2" x 1/2" transverse in direction on
1. The appellant Virsa Singh has the left side of the abdominal wall in
been sentenced to imprisonment for the lower part of the iliac region just
life under s. 302 of the Indian Penal above the inguinal canal. He also
Code for the murder of one Khem 45 said that " Three coils of intestines
10 Singh. He was granted special leave were coming out of the wound." The
to appeal by this Court but the leave incident occurred about 8 p. m. on
is limited to "the question that on July 13, 1955. Khem Singh died
the finding accepted by the Punjab about 5 p. m. the following day. The
High Court what offence is made 50 doctor who conducted the
15 out as having been committed by postmortem described the injury as-
the petitioner."
6. " an oblique incised stitched
2. The appellant was tried with five wound 21/2" on the lower part of left
others under Sec..302/Sec..49, side of belly, 13" above the left
Sec..324/Sec..149 and 55 inguinal ligament. The injury was
20 Sec..323/Sec..149 Indian Penal Code. through the whole thickness of the
He was also charged individually abdominal wall. Peritonitis was
under Sec..302. present and there was digested food
in that cavity. Flakes of pus were
3. The other, were acquitted of the
60 sticking round the small
murder charge by the first Court but
intestines and there were six
25 were convicted
cuts......... at various places, and
under Sec..326, Sec..324 and Sec..32
digested food was flowing out from
3 read with Sec.. 149, Indian Penal
three cuts." The doctor said that the
Code. On appeal to the High Court
65 injury was sufficient to cause death
they were all acquitted.
in the ordinary course of nature.
30 4. The appellant was convicted by
7. The learned Sessions Judge found
the first Court under Sec..302 and his
that the appellant was 21 or 22 years
conviction and sentence were upheld
old and said- " When the common
by the High Court.
70 object of the assembly seems to have
been to cause grievous hurts only, I

44
 do not suppose Virsa Singh actually 11. It was said that the intention that
had the intention to cause the death the section requires must be related,
of Khem Singh, but by a rash and not only to the bodily injury inflicted,
silly act he gave a rather forceful 40 but also to the clause, "and the bodily
5 blow, which ultimately caused his injury intended to be inflicted is
death. Peritonitis also supervened sufficient in the ordinary course of
and that hastened the death of Khem nature to cause death."
Singh. But for that Khem Singh may
perhaps not have died or may have 12. This is a favorite argument in this
10 lived a little longer." 45 kind of case but is fallacious. If there
is an intention to inflict an injury that
8. Basing on those facts, he said that is sufficient to cause death in the
the case fell under s. 300, 3rdly and ordinary course of nature, then the
so he convicted under s. 302, Indian intention is to kill and in that event,
Penal Code. 50 the "thirdly " would be unnecessary
because the act would fall under the
15 9. The learned High Court Judges first part of the section, namely- " If
considered that the whole affair was the act by which the death is caused
sudden and occurred on a chance is done with the intention of causing
meeting ". But they accepted the 55 death."
finding that the appellant inflicted the
20 injury on Khem Singh and accepted 13. In our opinion, the two clauses
the medical testimony that the blow are disjunctive and separate. The first
was a fatal one. is subjective to the offender: "If it is
done with the intention of causing
10. It was argued with much 60 bodily injury to any person."
circumlocution that the facts set out
25 above do not disclose an offence of 14. It must, of course, first be found
murder because the prosecution has that bodily injury was caused and the
not proved that there was an intention nature of the injury must be
to inflict a bodily injury that was established, that is to say, whether
sufficient to cause death in the 65 the injury is on the leg or the arm or
30 ordinary course of the stomach, how deep it penetrated,
nature. Sec..300, 3rdly was quoted: " whether any vital organs were cut
If it is done with the intention of and so forth. These are purely
causing bodily injury to any person objective facts and leave no room for
and the bodily injury intended to be 70 inference or deduction: to that extent
35 inflicted is sufficient in the ordinary the enquiry is objective; but when it
course of nature to cause death." comes to the question of intention,
that is subjective to the offender and

45
 it must be proved that he had an death in the ordinary course of nature
intention to cause the bodily injury is a matter of inference or deduction
that is found to be present. Once that from the proved facts about the
is found, the enquiry shifts to the nature of the injury and has nothing
5 next clause- "and the bodily injury 45 to do with the question of intention.
intended to be inflicted is sufficient In considering whether the intention
in the ordinary course of nature to was to inflict the injury found to have
cause death." The first part of this is been inflicted, the enquiry
descriptive of the earlier part of the necessarily proceeds on broad lines
10 section, namely, the infliction of 50 as, for example, whether there was an
bodily injury with the intention to intention to strike at a vital or a
inflict it, that is to say, if the dangerous spot, and whether with
circumstances justify an inference sufficient force to cause the kind of
that a man's intention was only to injury found to have been inflicted. It
15 inflict a blow on the lower part of the 55 is, of course, not necessary to enquire
leg, or some lesser blow, and it can into every last detail as, for instance,
be shown that the blow landed in the whether the prisoner intended to have
region of the heart by accident, then, the bowels fall out, or whether he
though all injury to the heart is intended to penetrate the liver or the
20 shown to be present, the intention to 60 kidneys or the heart. Otherwise, a
inflict ail injury in that region, or of man who has no knowledge of
that nature, is not proved. In that anatomy could never be convicted,
case, the first part of the clause does for, if he does not know that there is
not come into play. But once it is a heart or a kidney or bowels, be
25 proved that there was an intention to 65 cannot be said to have intended to
inflict the injury that is found to be injure them. Of course, that is not the
present, then the earlier part of the kind of enquiry. It is broad based and
clause we are now examining" and simple and based on common sense:
the bodily injury intended to be the kind of enquiry that " twelve
30 inflicted "is merely descriptive. All it 70 good men and true could readily
means is that it is not enough to appreciate and understand.
prove that the injury found to be
present is sufficient to cause death in 15. To put it shortly, the prosecution
the ordinary course of nature; it must must prove the following facts before
35 in addition be shown that the injury it can bring a case
is of the kind that falls within the 75 under Sec..300, 3rdly " ;
earlier clause, namely, that the injury
found to be present was the injury First, it must establish, quite
that was intended to be inflicted. objectively, that a bodily injury is
40 Whether it was sufficient to cause present ;

46
 Secondly, the nature of the injury purely objective and the only
must be proved; These are purely 40 question is whether, as a matter of
objective investigations. purely objective inference, the injury
is sufficient in the ordinary course of
Thirdly, it must be proved that there nature to cause death. No one has a
5 was an intention to inflict that license to run around inflicting
particular bodily injury, that is to say, 45 injuries that are sufficient to cause
that it was not accidental or death in the ordinary course of nature
unintentional, or that some other kind and claim that they are not guilty of
of injury was intended. murder. If they inflict injuries of that
kind, they must face the
10 16. Once these three elements are 50 consequences; and they can only
proved to be present, the enquiry escape if it can be shown, or
proceeds further and, Fourthly, it reasonably deduced that the injury
must be proved that the injury of the was accidental or otherwise
type just described made up of the unintentional. We were referred to a
15 three elements set out above is 55 decision of Lord Goddard in R v.
sufficient to cause death in the Steane (1) where the learned Chief
ordinary course of nature. This part Justice says that where a particular
of the enquiry is purely objective and intent must be laid and charged, that
inferential and has nothing to do with particular intent must be proved. Of
20 the intention of the offender. Once 60 course it must, and of course it must
these four elements are established be proved by the prosecution. The
by the prosecution (and, of course, only question here is, what is the
the burden is on the prosecution extent and nature of the intent that s.
throughout) the offence is murder 300 3rdly requires, and how is it to
25 under s. 300, 3rdly. It does not matter 65 be proved ? The learned counsel for
that there was no intention to cause the appellant next relied on a passage
death. It does not matter that there where the learned Chief Justice says
was Do intention even to cause an that: (1) [1947] 1 All E. R. 813, 816.
injury of a kind that is sufficient to
30 cause death in the ordinary course of 17. "if, on the totality of the
nature (not that there is any real 70 evidence, there is room for more than
distinction between the two). It does one view as to the intent of the
not even matter that there is no prisoner, the jury should be directed
knowledge that an act of that kind that it is for the prosecution to prove
35 will be likely to cause death. Once the intent to the jury's satisfaction,
the intention to cause the bodily 75 and if, on a review of the whole
injury actually found to be present is evidence, they either think that the
proved, the rest of the enquiry is intent did not exist or they are left in

47
 doubt as to the intent, the prisoner is determination from the medical and
entitled to be acquitted." other evidence about the nature and
40 seriousness of the injury.
18. We agree that that is also the law
in India. But so is this. We quote a 21. The learned counsel for the
5 few sentences earlier from the same appellant referred us to Emperor v.
learned judgment: Sardarkhan Jaridkhan (1917) I. L.
R. 41 Bom. 27,29. where Beaman J.
19. "No doubt, if the prosecution 45 says that- " where death is caused by
prove an act the natural a single blow, it is always much
consequences of which would be a more difficult to be absolutely certain
10 certain result and no evidence or what degree of bodily injury the
explanation is given, then a jury may, offender intended."
on a proper direction, find that the
prisoner is guilty of doing the act 50 22. With due respect to the learned
with the intent alleged." Judge he has linked up the intent
required with the seriousness of the
15 20. That is exactly the position here. injury, and that, as we have shown, is
No evidence or explanation is given not what the section. requires. The
about why the appellant thrust a 55 two matters are quite separate and
spear into the abdomen of the distinct, though the evidence about
deceased with such force that it them may sometimes overlap. The
20 penetrated the bowels and three coils question is not whether the prisoner
of the intestines came out of the intended to inflict a serious injury or
wound and that digested food oozed 60 a trivial one but whether he intended
out from cuts in three places. In the to inflict the injury that is proved to
absence of evidence, or reasonable be present. If he can show that he did
25 explanation, that the prisoner did not not, or if the totality of the
intend to stab in the stomach with a circumstances justify such an
degree of force sufficient to penetrate 65 inference, then, of course, the intent
that far into the body, or to indicate that the section. requires is not
that his act was a regrettable accident proved. But if there is nothing
30 and that he intended otherwise, it beyond the injury and the fact that
would be perverse to conclude that the appellant inflicted it, the only
he did not intend to inflict the injury 70 possible inference is that he intended
that he did. Once that intent is to inflict it. Whether he knew of its
established (and no other conclusion seriousness, or intended serious
35 is reasonably possible in this case, consequences, is neither here nor
and in any case it is a question of there. The question, so far as the
fact), the rest is a matter for objective 75 intention is concerned, is not whether

48
 he intended to kill, or to inflict an absence of direct testimony. It is not
injury of a particular degree of one for guess-work and fanciful
seriousness, but whether he intended conjecture.
to inflict the injury in question; and
5 once the existence of the injury is The appeal is dismissed.
proved the intention to cause it will
be presumed unless the evidence or 45
the circumstances warrant an
opposite conclusion. But whether the
10 intention is there or not is one of fact
and not one of law. Whether the
wound is serious or otherwise, and if 50
serious, how serious, is a totally
separate and distinct question and has
15 nothing to do with the question
whether the prisoner intended to
inflict the injury in question. It is true 55
that in a given case the enquiry may
be linked up with the seriousness of
20 the injury. For example, if it can be
proved, or if the totality of the
circumstances justify an inference, 60
that the prisoner only intended a
superficial scratch and that by
25 accident his victim stumbled and fell
on the sword or spear that was used,
then of course the offence is not 65
murder. But that is not because the
prisoner did not intend the injury that
30 he intended to inflict to be as serious
as it turned out to be but because he
did not intend to inflict the injury in 70
question at all. His intention in such
a case would be to inflict a totally
35 different injury. The difference is not
One of law but one of fact; and
whether the conclusion should be one 75
way or the other is a matter of proof,
where necessary, by calling in aid all
40 reasonable inferences of fact in the
49
 7. two or the appellant pulled Dalip
Kumar out of the house into the lane
Harjinder Singh Alias Jinda v. and gave him beating near a lamp-
Delhi Administration post in the comer of Zamirwali lane.
5 2003 Crl.J 2151 (Delhi) 45 At. that time the deceased Kewal
Sikri, S.M. Kumar, who was the brother of Dalip
1. Appeal by special leave from the Kumar, came and tried to intervene
judgment and order dated May 19, and rescue his brother. It is at this
1964 of the Punjab High Court, stage that the evidence conflicting as
10 Circuit Bench at Delhi in Criminal 50 to what exactly happened, according
Appeal No. 7-D of 1963. A.S.R. to one version, Amarjit Singh
Chari, C.L. Sareen and R.L. Kohli, accused caught hold of Kewal Kumar
for the appellant. B.R.L. lyenger, and the appellant took out the knife
S.P. Nayar for R.N. Sachthey, for the and stabbed the deceased. According
15 respondent. 55 to the other version, given by Mohd.
2. The Judgment of the Court was Ali, P.W. 5, this is what happened:
delivered by Sikri, J.This appeal by 4. "Dalip Kumar's brother holding
special leave was limited to the Jinda accused asked him not to fight.
question whether the case comes Jinda at that time took out the knife
20 under Sec. 302 of the Indian Penal 60 from his pocket and opened it with
Code. The case of the prosecution both his hands and then gave a blow
Sec. n which has been accepted by with it under the belly and the upper
the learned Sessions Judge and the portion of the left thigh. Amarjit
High Court was, in brie as follows: Singh accused did not do. anything."
25 3. On January 31, 1962, at about 2.30 65 5. In cross-examination he stated:
p.m., a fight took place' between "Jinda accused was holding Dalip
Dalip Kumar, P.W. 12, and Harjinder Kumar from the collar of his shirt by
Singh, appellant, near the water tap his left hand. At that time Kewal
in front of a tin factory in Zamirwali Kumar was on right hand side of
30 lane, Delhi. Harjinder was apparently 70 Jinda accused. When Jinda took out
worsted in the fight and he then left the knife and opened it with both his
the place holding out a threat that he hands, Dalip Kumar and his brother
would teach a lesson to Dalip Kumar. Kewal were grappling with Jinda
The appellant. returned with his accused Jinda accused gave only one
35 brother Amarjit Singh to the house of 75 knife blow to Kewal Kumar. Kewal
Dalip Kumar and shouted to Dalip Kumar was m bent condition when
Kumar to come out. Mst. Tejibai he was stabbed only once."
opened the door of the house and 6. After inflicting this injury the
asked the appellant and Amarjit appellant ran away. Dr. G.S. Mittal,
40 Singh to go away, but either these
50
 P.W. 8, noted the following injuries caused with the pen knife
on the person of the deceased: deliberately. It was not accidental or
i. A stab wound 1"x1/4"x? On left unintentional. Injury of any other
thigh upper and below the inguinal kind. was not intended. This injury in
5 ligament. 45 the opinion of this doctor was
ii. Abrasion l" x linear on back of left sufficient in the ordinary course of
fore-arm middle. He described the nature to cause death. This being so
other features of the injuries as the case 1958 S.C.R. 1495 would
follows: apply and the offence which the
10 "The direction of the stab wound was 50 accused Jinda has committed falls u/s
Oblique and was going medially. 302 Indian Penal Code."
Sartorius muscle was cut underneath 9. The High Court, on appeal, over-
along with femoral artery and vein. ruled a similar contention in the
Cut over major part of their diameter. following words:
15 There was effusion of blood in the 55 "Lastly, the counsel has attempted to
muscles and around the track over take the case out of the purview of
left thigh upper end..." the offence of murder. It has been
7. He deposed that death was due to contended that it was. just a small
shock and hemorrhage from injury to knife with which a blow was given
20 femoral vessels by stab wound of the 60 and that it was not on the vital part of
thigh. He further stated: the body and, therefore, the appellant
"It is correct that femoral artery and should not be held guilty of murder.
vein are important main vessels of. In my opinion, the contention is
the body. The cutting of these vessels wholly unsustainable. The deceased,
25 would result in great loss of blood. 65 a boy of about 16 years of age had
The cutting injuries of these vessels merely come to help his brother,
could result in immediate death or when the appellant, who had
after short duration." deliberately come armed with knife
8. It was urged before the Sessions from his house, stabbed the deceased
30 Judge 0n behalf of the appellant that, 70 with that knife on vulnerable part.
in the circumstances of the case; the 1 do not see how the (1) [1958]
offence, if at all committed, Would S.C.R. 1495.
fall under Sec. 326, I.P.C. The offence can be considered not to fall
learned Sessions Judge, relying on within the purview of murder."
35 Virsa Singh v. State of Punjab (1), 75 Later, the High Court observed:
he/d: "It is futile to contend that he did not
"In this case, the prosecution has intend to kill the deceased. The
proved that the bodily injury, the injury and the weapon are quite
nature of which has been described eloquent in this respect."
40 above was present. This injury was
51
 The learned counsel for the appellant, 40 Fourthly, it must be proved that the
Mr. Chari, contends on the facts injury of the type just described made
established in this case no offence up of the three elements set out
under Sec. 302 s been committed and above is sufficient to cause death in
5 the appellant should have been the ordinary course of nature. This
connected under Sec. 326 or at the 45 part of the enquiry is purely objective
most under Sec. 304, part two. The and inferential and has nothing to do
learned counsel for the respondent with the intention of the offender."
strongly relies. on the decision this The learned Judge further explained
10 Court in Virsa Singh v. Slate of the third ingredient at p. 1503 in the
Punjab(1) and he says at all the 50 following words:
ingredients laid down in that case by "The question is not whether the
this Court are ascent in this case and, prisoner intended to inflict a serious
therefore, the High Court was correct injury or a trivial one but whether he
15 in firming the conviction of the (1) [1958] S.C.R. 1495.
appellant under Sec. 302, I.P.C. It 55 intended to inflict 'the injury' that is
seems to us. that all the ingredients proved tO be present.If he can show
which were laid down this Court in that he did not, or if the totality of'
that case have not been established in the circumstances justify such an
20 this case. Bose, J., speaking for the. inference, then, of 'course, the intent
Court observed: "To put it shortly, 60 that the Sec. requires is not proved.
the prosecution must prove the But if there is nothing beyond the
following facts before it can bring a injury and the fact that the appellant
case under Sec. 300, "3rdly"; inflicted it, the only possible
25 First, it must establish, quite inference is that he intended to inflict
objectively, that a bodily injury is 65 it. Whether he knew of its
present; seriousness, or intended serious
Secondly, the nature of the injury consequences, is neither here nor
must be proved. These are purely ,there. The question, so far as the
30 objective investigations. intention is concerned, is not whether
Thirdly, it must be proved that there 70 he intended to kill, or to inflict an
was an intention to inflict that injury of a particular degree of
particular bodily injury, that is to say, seriousness, but whether he intended
that it was not accidental or to inflict the injury in question; and
35 unintentional, or that some other kind once the existence of the injury is
of injury was intended. 75 proved the intention to cause it will
Once these three elements are proved be presumed unless the evidence or
to be present, the enquiry proceeds the circumstances warrant an
further and,. opposite conclusion.

52
 In Rajwant singh v.State of appellant aimed the blow that this
Kerala(1), Hidayatullah, J. referring particular part of the thigh knowing
to Virsa Singh v. state of Punjab(2), that it would cut the artery. It may be
observed: observed that the appellant had not
5 "As was laid down in Virsa Singh v. 45 used the knife While he was engaged
State of Punjab... for the application in the fight with Dalip Kumar. It was
of this clause it must be first only when he felt that the deceased
established that an injury is caused, also came up against him that he
next it must be established whipped out the knife.
10 objectively what the nature of that 50 (1) A.I.R. 1965 S.C.1874, 1878 (2)
injury in the ordinary course of [1958] S.C.R. 1495 in these
nature is. If the. injury is found to be circumstances it cannot be said that it
sufficient to cause death one test is has been proved that it was. the
satisfied. Then it must be proved that intention of the appellant to inflict
15 there was an intention to inflict that 55 this particular injury on tiffs
very injury and not so.me other particular place. It is, therefore, not
injury and that it was not accidental possible to apply cl. 3 of Sec. 300 to
or unintentional. If this is also held the act of the accused.
against the offender the offence of Nevertheless, the deceased was in a
20 murder is satisfied." 60 crouching position when the
It seems to us that the. High Court appellant struck him with the knife.
has not considered whether the third Though the knife was " 5 to. 6" in
ingredient laid down by Bose, J. in length including the handle it was
Virsa Singh v. State Punjab(2) has nonetheless a dangerous weapon.
25 been proved in this case or not. In 65 When the appellant struck the
our opinion the circumstances justify deceased with the knife, he must
the inference that the accused did not have known that the deceased then
intend to cause an injury on this being in a bent position the blow
particular portion of the thigh. The would land in the abdomen or near it
30 evidence indicates that while the 70 a vulnerable part of the human body
appellant was trying to assault Dalip and that such a blow was likely to
Kumar and the deceased intervened, result in his death. In these
the appellant timing 'himself one circumstances it would be quite
against two took out the knife and legitimate to hold that he struck the
35 stabbed 1he deceased, It also 75 deceased with the knife with the
indicates that the deceased at that intention to cause an injury likely to
stage was in a crouching position cause death. We are, therefore, of
presumably to intervene and separate the-opinion that the offence falls
the two. It cannot, therefore, be said under Sec. 304 Part 1.
40 With any definiteness that the
53
 The appeal is allowed and the been convicted under Sec. 302 I.P.C.;
conviction is altered from one under his conviction could only be under
Sec. 302 to Sec. 304 Part 1 and the Sec. 304 I.P.C. Mr.Anoop
appellant is sentenced to seven years Choudhary, learned senior counsel
5 rigorous imprisonment. 45 appearing for the State, argued that
G.C. none of the requirements of
Appeal allowed. Exception 4 are present and the
circumstances clearly suggest that the
SYED SHAH MOHAMMED appellant had intention to kill the
10 QUADRI, J. 50 deceased, therefore, he was rightly
Leave is granted limited to the convicted under Sec. 302 I.P.C.
question of nature of offence. The Apropos the contentions, we have
appellant along with two others was perused the judgments of the Trial
tried for committing murder of one Court and the High Court. It appears
15 Satish (hereinafter referred to as 'the 55 that the appellant and three others
deceased') and causing injuries with snatched the wrist watch of a boy
knife to Harkishan and was convicted known to the deceased and
for offences punishable under Sec. Harkishan. At the request of that boy,
302 and 324 I.P.C. read with Sec. 34 they asked the appellant and his
20 I.P.C. He was sentenced to life 60 associates to return the watch. The
imprisonment and three years appellant told the deceased and
rigorous imprisonment for the said Harkishan to come to some specified
offences by learned Sessions Judge place. On reaching there, they had
in Sessions Case No.198 of 1981 on exchange of hot words and then
25 July 17, 1982. A Division Bench of 65 Naresh, Pappu and Laxman caught
the High Court of the Madhya hold of the deceased and the
Pradesh at Gwalior in Criminal appellant gave a knife blow on the
Appeal No.171 of 1982 confirmed chest of the deceased as a result of
his conviction under Sec. 302 and which he fell down. The appellant
30 324 I.P.C. and sentence for the said 70 also inflicted injuries with knife on
offences and dismissed his appeal on Harkishan who rushed to save the
April 30, 1998. Against the judgment deceased. While the deceased was
and order of the High Court, he is in being taken to the police station, he
appeal before this Court. Dr. succumbed to the injuries. Dr.
35 T.N.Singh, learned senior counsel for 75 D.S.Badkur (P.W.5), who conducted
the appellant, has urged that it is a post-mortem on the person of the
case falling under Exception 4 to deceased, found the following
Sec. 300 I.P.C and, in any event, as injuries :
the appellant had given only a single "Stab wound 1.5 x .5 cm. vertical
40 blow with knife, he ought not to have 80 situated on interior aspect of chest on
54
 left border of sternum and at the stern passion upon a sudden quarrel; (c)
costal joint of 6th and 7th rib, the offender has not taken undue
sternum cut and fracture in arms 9.2 advantage; and (d) the offender has
area, truck of the wound going not acted in a cruel or unusual
5 through and through and sternum, 45 manner.
pericandium (pericardium), anterior Where these requirements are
and posterior well of rt. vertical (It) satisfied, culpable homicide would
dome of disphram (diaphragm), left not be murder. On the facts of this
lobe of liver cardiac and of stomach case, it cannot said that the fatal
10 perforated total depth of wound was 50 injury was inflicted without
19 cm. and direction of truck was premeditation. Indeed, the appellant
going downwards posteriorly and asked the deceased to come to a
towards abdominal cavity pericardial particular place to receive the watch.
(illega) [iliac] full of blood, There, three associates of the
15 abdominal cavity full of blood, 55 appellant caught hold of the deceased
middle media sternum ecchy mosed and the appellant gave the fatal blow
(ecchymosis) around wound track. with the knife. The stab wound was
Stomach contention coming out in given on the chest on the left side of
peritoneum cavity." the sternum between the costal joint
20 P.W.5 stated that the deceased died 60 of the 6th and 7th rib and both the
due to shock and haemorrhage ribs have been fractured. It appears
resulting from the said wound which that truck of the wound had gone
could have been caused by a sharp- through sternum, pericardium
edged cutting weapon. Now anterior and posterior after passing
25 Exception 4 to Sec. 300 I.P.C, is in 65 the ribs and thereafter entered the
the following terms : liver and perforated a portion of
"Exception 4.- Culpable homicide is stomach. Total depth of wound was
not murder if it is committed without 19 cm and direction of truck was
premeditation in a sudden fight in the going downwards posteriorly. The
30 heat of passion upon a sudden quarrel 70 impact of the single blow with knife
and without the offender's having has been disastrous. Therefore, it
taken undue advantage or acted in a cannot be said that the appellant has
cruel or unusual manner. not taken undue advantage or not
Explanation. - It is immaterial in acted in cruel or unusual manner. In
35 such cases which party offers the 75 our view, Exception 4 has, therefore,
provocation or commits the first no application on the facts of this
assault." case. Adverting to the contention of a
The requirements of this exception single blow, it may be pointed out
are: (a) without premeditation in a that there is no principle that in all
40 sudden fight; (b) in the heat of 80 cases of single blow Sec. 302 I.P.C.
55
 is not attracted. Single blow may, in I.P.C. to Sec. 304 I.P.C. A perusal of
some cases, entail conviction under these judgments shows that these are
Sec. 302 I.P.C., in some cases under instances of application of the
Sec. 304 I.P.C and in some other aforementioned principles. We do
5 cases under Sec. 326 I.P.C. The 45 not, therefore, consider it necessary
question with regard to the nature of to refer to them in detail. For the
offence has to be determined on the above reasons, we are of the view
facts and in the circumstances of that the appellant had rightly been
each case. The nature of the injury, convicted and sentenced under Sec.
10 whether it is on the vital or non-vital 50 302 and 324 I.P.C. by the Trial Court
part of the body, the weapon used, and the High Court. We find no merit
the circumstances in which the injury in this appeal which is accordingly
is caused and the manner in which dismissed.
the injury is inflicted are all relevant
15 factors which may go to determine 55
the required intention or knowledge
of the offender and the offence
committed by him. In the instant
case, the deceased was disabled from
20 saving himself because he was held
by the associates of the appellant
who inflicted though a single yet a
fatal blow of the description noted 60
above. These facts clearly establish
25 that the appellant had intention to kill
the deceased. In any event, he can
safely be attributed knowledge that
the knife blow given by him is so
imminently dangerous that it must in
30 all probability cause death or such
bodily injury as is likely to cause 65
death. Dr.Singh invited our attention
to the following judgments of this
Court in Tholan vs. State of Tamil
35 Nadu [AIR 1984 SC 759], Ranjitsinh
Chandrasinh Atodaria vs. State of
Gujarat [AIR 1994 SC 1060] and
Balbir Singh vs. State of Punjab
70
[1995 (3) Suppl. SCC 472] for
40 altering conviction from Sec. 302
56
 8. inside and found Ramayee lying dead
on the floor with a ploughshare lying
Palani Goundan v. Emperor (1919)
near her. They say they at once went
ILR 547 (Mad) NAPIER, J. –
and told Rasa Goundan, who lives
1. The accused has been convicted of 40 two doors off from the accused's
5 the murder of his wife. The evidence house to go and call their father,
shows that on Wednesday, the 23rd prosecution witness No. 2. Rasa
of October 1918, at about four or five Goundan, prosecution witness No. 2
naligais before sunset she was seen who at once came and found his
by prosecution witness No. 6 45 daughter lying dead at about 10 or 11
10 weeping and she said that her o'clock in the night. Prosecution
husband had beaten her. The witness witness No. 2 says that he taxed the
told her to go home, promised to accused with the murder of his
send for her father and then went to daughter and the accused said she
the father himself who lived in 50 hanged herself. Prosecution witness
15 another hamlet of the same village, a No. 2 further says that he went to the
mile away, a little before sunset and monigar and reported, but the
told him of the occurrence. After monigar was busy with a procession
sunset the father, prosecution witness and only promised to report. He
No. 2, sent his son, prosecution 55 thought that the monigar was
20 witness No. 3, and his son-in-law, endeavoring to hush the matter up, so
prosecution witness No. 4, to the he went to report the matter to the
house where his daughter was living. police himself at Kodumudi, three or
2. Their evidence is that they arrived four miles away, and laid a
at the house at four or five naligais 60 complaint.
25 after sunset and that just outside the 3. This complaint was recorded at
door they found the mother and the 9.15 a.m. the next morning. That the
brother of the accused in the vasal monigar was endeavoring to hush the
and that the mother was matter up, there can be no doubt, for
remonstrating with her son inside 65 it is clear that he sent no report to the
30 saying “do not beat a woman.” police whatsoever as was his duty to
According to their evidence they did do. The accused told a story to the
not hear any cries inside the house at effect that he came back early in the
that time. After they waited a few evening to get his meals and found
minutes the accused opened the door 70 his wife hanging with a rope tied to
35 and came out. They say they went the roof and he calls two witnesses

57
 who say that the accused came and 5. The question is whether this is
told them that his wife would not let murder. Sec.. 299 of the Indian Penal
him in and they went in with him and Code provides that “Whoever causes
found his wife hanging from a beam. 40 death by doing an act with the
5 I do not think there can be any doubt intention of causing .... such bodily
that the deceased was hanged, but the injury as is likely to cause death ....
evidence of the two defence commits the offence of culpable
witnesses is so discrepant that it is homicide"; and Sec..300, clause (3),
impossible to believe their version of 45 provides that "if it is done with the
10 the occurrence. intention of causing bodily injury to
any person and the bodily injury
4. The medical evidence shows that
intended to be inflicted is sufficient
the woman had received a severe
in the ordinary course of nature to
blow on the side of her head which
50 cause death, then in such cases
would probably have rendered her
culpable homicide is murder.
15 unconscious, and it also shows that
she died of strangulation which may 6. Now, the hanging of a woman who
have been the effect of hanging. That dies from the effect of the hanging is
she hanged herself is impossible on the face of it causing bodily injury
because, as pointed out by the 55 which is sufficient in the ordinary
20 Medical Officer, the blow on the course of nature to cause death and
head must have produced the section only requires that there
unconsciousness and therefore she should be homicide, namely the
could not hang herself. I am satisfied causing of death, to make this
on the evidence of the following 60 murder. It cannot, I think, be
25 facts: that the accused struck his wife disputed that the accused intended to
a violent blow on the head with the cause bodily injury for he intended to
ploughshare which rendered her hang and did hang whether the body
unconscious, that it is not shown that was alive or dead. If he had stabbed
the blow was likely to cause death 65 her or shot her intending it to be
30 and I am also satisfied that the believed that she had stabbed or shot
accused hanged his wife very soon herself I cannot see that he would
afterwards under the impression that have done otherwise than intended to
she was already dead intending to cause the wounds which he did
create false evidence as to the cause 70 cause. In this case the bodily injury
35 of the death and to conceal his own was strangulation by hanging.
crime.

58
 7. It is, however, suggested that there believed to be dead would be
is a necessary limitation, namely, that protected from the scope of Sec..299.
the person on whom the bodily injury
9. The Public Prosecutor, therefore,
is inflicted must be a person who is
40 suggested that the proper limitation
5 to the knowledge of the accused
will be found by introducing the
capable of being killed and that
word ‘unlawfully’. That would
therefore if the accused thinks that
perhaps leave one class of persons
the person is dead already he cannot
unprotected as in the following
be convicted of culpable homicide.
45 instance. Suppose that in this case the
10 8. One objection to this theory is that accused, having struck his wife a
it is not necessary that the person blow on the head that made her
who is killed should be a person to unconscious and believing her to be
whom the offender intends to cause dead, had gone to his relatives and
the bodily injury and that therefore 50 told them of the occurrence and they
15 his knowledge of the condition of the having sent him away themselves
person killed is not a necessary hanged the body of the woman
element for conviction for murder. If believing her to be dead for the
A shoots at B with intent to kill B but purpose of concealing his crime.
misses B and kills C, then he has 55 They would be undoubtedly acting
20 committed the murder of C although unlawfully, for they would be guilty
he did not even know that C was of an offence under Sec..201,
there. This point has been the subject namely, causing evidence of the
of an express decision of this Court commission of an offence to
in a case [The Public Prosecutor v. 60 disappear with the intention of
25 Mushunoouru Surya Narayana screening the offender from legal
Moorti, 1912 11 M.L.T. 127], where punishment, and yet it seems a strong
the accused attempted to poison one proposition to say that they have
person and the poison was taken by committed murder. Of course the
another. There is no doubt that such 65 position of the accused in this case is
30 is the law and it seems to me to far worse, for he has committed the
follow that the opinion of the person offence of grievous hurt; and
who inflicts the injury is immaterial. speaking for myself I see no reason
There is a general exception in the why he should not have to bear the
Penal Code which saves persons 70 consequences of his subsequent act
35 acting innocently, viz., Sec..79. So in killing the woman. Still it does
the burying of a person wrongly appear that there should be some

59
 limitation of the strict words of the the definition states not only what the
section and the difficulty is to say accused must have done but his state
what that limitation is to be. of mind in regard to his act when he
40 was doing it. The whole Sec..8,
10. The protection would seem to be
Sec..9 and Sec..10 on mens rea and
5 found in English Law by application
knowledge is worthy of very close
of the doctrine of mens rea though
consideration and he seems to be
this might again be affected by the
quite clear that all the protections
doctrine of malice in law which
45 found in the English Criminal Law
makes the killing in the course of a
are reproduced in the Chapter on of
10 felony homicide. This doctrine of
General Exceptions in the Penal
mens rea, though extremely difficult
Code.
of definition, operates to protect
persons who have no wrongful 12. Sec.. 79, Sec..80 and Sec..81
intention or other blameworthy 50 would seem to cover all cases where
15 condition of mind. a person is not acting with a criminal
intent. Now, it seems to me that the
11. To what extent it would operate
particular clauses in Sec..299 and
to protect persons who knew that
Sec..300 which we have to interpret
they were committing a criminal
55 do create what I am tempted to call
offence, namely concealment of
constructive murder. The first clause
20 murder, is a question which I do not
of Sec..299 requires the intention of
propose to consider though the
causing death; the third clause
decision in The Queen v. Prince
requires knowledge that he is likely
[(1875) L.R. 2 Crown Causes
60 by such act to cause death. In the
Reserved 154] referred to by the
same way the first clause of Sec..300
25 Public Prosecutor would seem to
requires an intention to cause death;
apply the mens rea to a person who
the second clause requires an
intended to do an unlawful act but
intention to cause such bodily injury
not the unlawful act which he in fact
65 as the offender knows to be likely to
did. This is in fact the argument of
cause death; and the fourth clause
30 the Public Prosecutor who asks us to
requires the knowledge that the act is
apply this direction. I do not think,
so imminently dangerous that it
however, that it arises for
must, in all probability, cause death
consideration. Mr. Mayne is quite
70 or is likely to cause death and the act
clear that under the Penal Code the
is committed without any excuse for
35 maxim is wholly out of place. He
incurring the risk. In all these we
says that every offence is defined and

60
 have intention, knowledge and course it is done innocently, and I see
recklessness directed towards the no reason why the offender should
causing of death. not suffer the consequences of his
40 act. I shall now refer to the cases.
13. On the other hand, in the second
The first is Gour Gobindo Thakoor
5 clause to Sec..299 the intention is
[(1866) 6 W.R. (Cr. R.) 55. The facts
directed towards the bodily injury
are very similar. There one Gour
and in the third clause to Sec..300 the
Gobindo struck the deceased, Dil
intention is the same. What makes
45 Muhammad, a blow which knocked
the offence murder is that the bodily
him down and then he and others
10 injury should in fact be likely to
without inquiry as to whether he was
cause death entirely apart from
dead or not, in haste hung him up to
intention or knowledge. The
a tree so as to make it appear that he
legislature has thought fit to make
50 committed suicide. The accused were
the offence murder without proof of
all convicted of hurt, but the High
15 intention or knowledge directed
Court quashed the proceedings and
towards death on the principle, of
directed the accused to be re-tried on
course, that a person must be deemed
charges of murder, culpable
to intend the natural result of the
55 homicide not amounting to murder
injury which he inflicts; that is to
and hurt. Mr. Justice Seton-Karr
20 say, if he inflicts an injury which is
says: If however, the deceased was
likely to cause death and that person
not actually killed by the blow, but
dies, he must take the consequences
was killed by the suspension, then
of his action. But the intention
60 Gour Gobindo himself, and also all
provided for is confined to the bodily
the other Thakoors who took part in
25 injury and not to the death.
hanging him up to the tree, would be
14. That is the law which we have to clearly liable to a charge of culpable
apply, and unless a person can be homicide amounting to murder; for,
protected by one of the general 65 without having ascertained that he
exceptions, I cannot see for myself was actually dead, and under the
30 how he is to escape from the impression that he was only stunned,
language of the Sec... Apart from the they must have done the act with the
actual offence of concealing a intention of causing death, or bodily
murder, it is the grossest violation of 70 injury likely to cause death, and
natural rights to stab, shoot or hang a without the exceptions provided by
35 person without absolute knowledge the law, or they might have been
that that person is dead unless of

61
 committed for culpable homicide not set fire to the hurt in which he was
amounting to murder. lying with a view to remove all
evidence of the crime. The medical
15. Mr. Justice Norman says:
40 evidence showed that the blows were
Suppose, secondly, that the Thakoors
not likely to cause death and did not
5 had no intention of killing the
cause death and that death was really
deceased, but, finding him insensible,
caused by injuries from burning.
without enquiry whether he was dead
or alive, or giving him time to 16. Mr. Justice Birdwood states the
recover, under an impression that he 45 provisions of Sec.. 299 and says: it is
10 was dead, hung him to the tree, and not as if the accused had intended, by
thereby killed him. It appears to me setting fire to the shed, to make the
that they might all have been put on deceased's death certain, and
their trial, under Sec.. 304, for therefore acquits him of murder
culpable homicide not amounting to 50 though he convicts him of an attempt
15 murder. I think a jury might fairly to commit murder because of the
presume against them that they must accused's own admission that he
have known that they were likely by intended by the blow to kill. With
that act to cause death. The difficulty great deference the learned Judge
in this case is that the learned Judges 55 give no reason for the view he takes.
20 did not wish to decide the case, and Mr. Justice Parsons took the view
therefore their language is that the whole transaction, the blow
hypothetical. Mr. Justice Norman and the burning, must be treated as
says that a jury might fairly presume one and that therefore the original
knowledge that they were likely to 60 intention to cause death applied to
25 cause death, hereby introducing a the act of burning which did cause
limitation which is to be found in the death.
clauses we have under consideration.
17. The Chief Justice disagreed with
Certainly Seton-Karr, J., thinks the
Mr. Justice Parsons as to the
offence to be culpable homicide. The
65 transactions being one and without
30 next case is Queen Empress v.
giving any other reason acquitted.
Khandu [(1891) I.L.R. 15 Bom. 194].
With the greatest deference to the
In that case it was found that the
learned Judges I do not find any
accused struck the deceased three
assistance from the manner in which
blows on the head with a stick with
70 they disposed of the case. Mr. Mayne
35 the intention of killing him. The
deals with this case in Sec..414 of his
accused, believing him to be dead,
notes and is inclined to agree with

62
 the dissenting Judge that the the question whether on the facts
intention should be treated as found by us in this case the offence
continuing up to the burning. The last of murder has been committed.
case is The Emperor v. Dalu Sardar
40 19. SADASIVA AYYAR, J. - I agree
5 [(1914) 18 CWN 1279]. In that case,
in referring the question to a Full
the accused assaulted his wife by
Bench as proposed by my learned
kicking her below the navel. She fell
brother. I shall however give my own
down and became unconscious. In
opinion shortly on the matter
order to create an appearance that the
45 referred. I do not think that the case
10 woman had committed suicide, he
of the Queen v. Prince [(1875) L.R. 2
took up the unconscious body and,
Crown Cases Reserved 154] relied
thinking it to be a dead body, hung it
on strongly by Mr. Osborne has
by a rope. The postmortem
much relevancy in the consideration
examination showed that death was
50 of the question before us. In that case
15 due to hanging.
the decision mainly depended upon
18. The Court, I think, assumed that the wording of the Statute 24 & 25
at the time he struck her he was not Vict., c. 100, s. 55, which made the
intending to cause death, and, I think, taking unlawfully of an unmarried
we may also take it that the injury 55 girl, being under the age of 16 years,
20 was not in fact likely to cause death. out of the possession of the father a
The learned Judges say that as he misdemeanour. The majority held in
thought it to be a dead body he could that case that there was no lawful
not have intended to kill her if he excuse for taking her away, and the
thought that the woman was dead 60 accused's ignorance of her age did
25 and seem to assume that the intention not make it not unlawful. We have
to cause death is a necessary element simply to construe the definition of
in the offence of murder. With very culpable homicide in Sec..299. The
great deference to the learned Judges intention "to cause such bodily injury
they seem to have ignored the 65 as is likely to cause death" cannot, in
30 language of Sec..299 and Sec..300 my opinion, mean anything except
and accordingly I can find no "bodily injury" to a living human
assistance from this case. That being body. If this is not so, then,
the state of the authorities, it seems according to the strict letter of the
to me to be advisable to get a definite 70 definition, the relatives who burn the
35 pronouncement from this Court and I body of a man believing it to be dead
would therefore refer to a Full Bench would be guilty of culpable

63
 homicide. I may even say that it is did not wish to import the artificial
remarkable that the words "of a rules of the English Law of felony
human being" are not added in the into the Indian Criminal Law. A
body of the definition after 'death' 40 similar case in Queen-Empress v.
5 and, as the definition stands, the Khandu[(1891) I.L.R. 15 Bom. 194]
causing of the death of anything with contains observations by Sargeant,
intention will be culpable homicide, C.J., and Birdwood, J., that "what
which of course is a contradiction in occurred from first to last cannot be
terms. I think after the words "bodily 45 regarded as one continuous act done
10 injury" the following words must be with the intention of killing the
understood, namely, "to some living deceased" and I agree with them
human body or other" [it need not be respectfully. As regards the case,
a particular person’s body according Gour Gobindo Thakoor[(1866) 6
to illustration (a) and it may even be 50 W.R. (Cr. R.), 55], no final opinion
15 the body of another living person was expressed, and the fact that the
than the one intended actually that accused hastily and recklessly came
received the injury]. The case of the to the conclusion that the woman was
Emperor v. Dalu Sardar [(1914) 18 dead might make him liable for
CWN 1279] is almost exactly a 55 punishment under Sec..304-A
20 similar case to the present. Though (causing death by doing rash or
(as my learned brother points out) the negligent act) but not under culpable
Judges refer only to the intention to homicide, Sec..300 and Sec..304
kill and not the intention to cause having the same relation to each
bodily injury likely to cause death, 60 other as Sec..325 and Sec..338
25 the two stand clearly on the same relating to grievous hurt.
footing.
21. WALLIS, C.J. - The accused was
20. As regards Mr. Osborne's convicted of murder by the Sessions
argument that a person who does an Judge of Coimbatore. He appealed to
unlawful act, such as trying to 65 this Court, which took a different
30 conceal a murder, should take the view of the facts from that taken by
consequences of the same if the act the learned Sessions Judge and has
done in furtherance of that unlawful referred to us the question whether
intention results unintentionally in on the facts as found by the learned
homicide, I need refer only to 70 Judges who composed it, the accused
35 illustration (c) to Sec..299 which has in law committed the offence of
indicates that the Indian legislature murder. Napier, J. inclined to the

64
 view that he had: Sadasiva Ayyar, J., case. We must therefore turn to the
thought he had not. The facts as defining Sec..299. Sec..299 defines
found are these: the accused struck culpable homicide as the act of
his wife a blow on the head with a 40 causing death with one of three
5 ploughshare, which knocked her intentions: (a) of causing death, (b)
senseless. He believed her to be dead of causing such bodily injury as is
and in order to lay the foundation for likely to cause death, (c) of doing
a false defence of suicide by hanging, something which the accused knows
which he afterwards set up, 45 to be likely to cause death. It is not
10 proceeded to hang her on a beam by necessary that any intention should
a rope. In fact the first blow was not exist with regard to the particular
a fatal one and the cause of death was person whose death is caused, as in
asphyxiation by hanging which was the familiar example of a shot aimed
the act of the accused. When the case 50 at one person killing another, or
15 came before us, Mr. Osborne, the poison intended for one being taken
Public Prosecutor, at once intimated by another. "Causing death" may be
that he did not propose to contend paraphrased as putting an end to
that the facts as found by the learned human life: and thus all three
referring Judges constituted the crime 55 intentions must be directed either
20 of murder or even culpable homicide. deliberately to putting an end to a
We think that he was right in doing human life or to some act which to
so: but as doubts have been the knowledge of the accused is
entertained on the subject, we think it likely to eventuate in the putting an
proper to state shortly the grounds 60 end to a human life.
25 for our opinion.
24. The knowledge must have
22. By English Law this would reference to the particular
clearly not be murder but man circumstances in which the accused
slaughter on the general principles of is placed. No doubt if a man cuts the
Common Law. In India every offence 65 head off from a human body, he does
30 is defined both as to what must be an act which he knows will put an
done and with what intention it must end to life, if it exists. But we think
be done by the Sec.. of the Penal that the intention demanded by the
Code which creates it a crime. Sec.. must stand in some relation to a
70 person who either is alive, or who is
23. There are certain general
believed by the accused to be alive. If
35 exceptions laid down in chapter IV,
a man kills another by shooting at
but none of them fits the present

65
 what he believes to be a third person Judges in that case and with clear
whom he intends to kill, but which is intimation of opinion by Sargeant,
in fact the stump of a tree, it is clear C.J. in Queen-Empress v. Khandu
that he would be guilty of culpable 40 [(1891) I.L.R. 15 Bom. 194]. Though
5 homicide. This is because though he in our opinion, on the facts as found,
had no criminal intention towards the accused cannot be convicted
any human being actually in either of murder or culpable
existence, he had such an intention homicide, he can of course be
towards what he believed to be a 45 punished both for his original assault
10 living human being. on his wife and for his attempt to
create false evidence by hanging her.
25. The conclusion is irresistible that
These, however, are matters for the
the intention of the accused must be
consideration and determination of
judged in the light of the actual
50 the referring Bench.
circumstances, but in the light of
15 what he supposed to be the [When the case came on again for
circumstances. It follows that a man hearing before the Division Bench,
is not guilty of culpable homicide if the court convicted the accused of
his intention was directed only to grievous hurt under Sec..326, Indian
what he believed to be a lifeless 55 Penal Code.-Ed.].
20 body.
26. Complications may arise when it
is arguable that the two acts of the
accused should be treated as being
really one transaction as is Queen-
25 Empress v. Khandu [(1891) I.L.R. 15
Bom. 194] or when the facts suggest 60
a doubt whether there may not be
imputed to the accused a reckless
indifference and ignorance as to
30 whether the body he handled was
alive or dead, as in Gour
Gobindocase [(1866) 6 W.R. (Cri R.)
55]. The facts as the same as those 65
found in The Emperor v. Dalu
35 Sardar[(1914) 18 CWN 1279]. We
agree with the decision of the learned

66
 9. existence of P.W. 15, who confirms
his story that the two accused sold to
In Re Thavamani AIR 1943 Mad.
him (P.W. 15) part of a chain which
571 KING, J.-
had been worn by the deceased at the
1. The appellant here was accused 40 time of her death. The evidence of
5 number P.W.15 and P.W. 16 taken together
2 prosecuted before the learned shows that the proceeds of the sale of
Sessions Judge of Ramnad for the this portion of the chain were divided
murder of a woman named between the two accused. There is
Meenakshi Achi on the evening of 45 also a confessional statement made
10 the 26th September last. The by Accused 2 before the Taluk
deceased was admittedly murdered in Magistrate of Tirupatttur. He
her flower garden about6 11/2 explains how he was induced by
furlongs away from the village. Her accused 1 to assist accused in the
dead body was found on 27th 50 killing of the deceased. After the first
15 September in a well in the garden. attack had been made upon the
Two persons were prosecuted for the deceased he (Accused 2) prevented
murder. Accused number 1 who was her from leaving the garden and then
eventually acquitted, was the seized her legs and held her tight
gardener employed in the garden. 55 while, according to the confession,
20 Accused 2 was an acquaintance of the murder was completed.
his, who was in need of money at the 4. After she had died, Accused 1 and
time. There is no direct evidence of 2 threw the body into the well. The
from the post mortem certificate or significance of this confession which
the testimony of the doctor as to the 60 has been so signally confirmed by
25 cause of death. The body when found the discovery of P.W. 15 and P.W.
had marks of three punctured wounds 16 and the chain which was sold to
upon the head; but those wounds by the former, as proving a case of the
themselves according to the doctor commission of some offence against
would not be sufficient to cause 65 the appellant, has not been
30 death. challenged in argument before us.
3. The principal evidence upon which But it is argued that the medical
Accused 2 was convicted comes evidence taken in conjunction with
from his own conduct. He has given the confession shows that there could
a statement to the police as a result of 70 not have been any intention on the
35 which he has informed them of the part of Accused 2 to commit murder

67
 and therefore he cannot be found he thought she was dead, whereas
guilty under Sec..302, Penal Code. here according to the argument the
Great stress is laid upon the confession does contain a statement
statement in the confession that the 40 equivalent to the expression of a
5 deceased had died and that her dead belief that the deceased was already
body had been thrown into the well. dead when the body was thrown into
The doctor on the other hand gives the well. But that is not the most
evidence that the only marks of important point of distinction
external injury which he saw were of 45 between 42 Mad. 547 and 57 Mad.
10 injuries which were insufficient to 158 at p. 171. The main point of
cause death. It is accordingly argued distinction between the two cases is
that accused 2 was under a this, that in 42 Mad. 547 there was
misapprehension when he thought never at any time an intention to
that the deceased was dead and that 50 cause death.
15 the blows which accused 1 with his
7. The original intention was only to
assistance had struck at the deceased
cause injury. The second intention
had not therefore caused her death.
was only to dispose of a supposedly
5. Whatever therefore may have been dead body in a way convenient for
the intention of the accused in 55 the defence which the accused was
20 striking those blows, that intention about to set up. In 57 Mad. 158,
had not been effected. The action of however, and, in the present case, it
the appellant and accused 1 in is clear that there was at the
throwing the body into the well could beginning an intention to cause
not possibly be in pursuance of an 60 death. This intention was apparently
25 intention to cause her death, as they completely carried into effect but in
already believed that she was dead. fact was not. Even if the intention at
Reliance in support of this position is the second stage of the transaction
placed upon the decision in 42 Mad. had been merely to dispose of a dead
547. The learned Sessions Judge 65 body, as is pointed out in 57 Mad.
30 however has refused to follow that 158, the two phases of the same
ruling and has followed instead the transaction are so closely connected
later ruling reported in 57 Mad. 158. in time and purpose that they must be
considered as parts of the same
6. It is true that in this later case there
70 transaction. The result of the actions
was no definite plea by the accused
of the accused taken as a whole
35 that at the time when he put the body
of the deceased upon the railway line

68
 clearly is to carry out the intention to
kill with which they began to act.
8. It seems to us that there is no
satisfactory reason for distinguishing
5 the facts of the present case from the 35
ruling in 57 Mad. 158 and that the
learned Sessions Judge rightly relied
upon that ruling in holding that, even
if at the time when the woman was
10 thrown into the well she was alive,
and even if the appellant then thought
her dead he would be guilty of 40
murder. The conviction of the
appellant for murder must therefore
15 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.
45
20 9. We accordingly confirm the
sentence and dismiss the appeal.

50
25

55
30

69
 Rajalakshmi, who was aged 8 or 9
35 years, and who was niece of the
accused, being the daughter of
10. accused's brother-in-law, took some
Emperor v. Mushnooru of the sweetmeat and ate it and gave
5 Suryanarayana Murthy some to another little child who also
40 ate it. According to one account
11912, MLJR 333 (Mad) Rajalakshmi asked the accused for a
BENSON, J. – portion of the sweetmeat, but
according to the other account, which
1. This is an appeal by the Public we accept as the true account, Appala
Prosecutor on behalf of the 45 Narasimhulu, after eating a portion of
10 Government against the acquittal of the sweetmeat threw away the
one Suryanarayana Murthy, on a remainder, and it was then picked up
charge of having murdered the girl, by Rajalakshmi without the
Rajalakshmi. knowledge of the accused. The two
2. The facts of the case, so far as it is 50 children who had eaten the poisoned
15 necessary to state them for the sweetmeat, died from the effects of
purposes of this appeal, are as it, but Appala Narasimhulu, though
follows: The accused, with the the poison severely affected him,
intention killing Appala eventually recovered.
Narasimhulu, (on whose life he had 55 4. The accused has been sentenced to
20 effected large insurances without transportation for life for having
Appala Narasimhulu's knowledge, attempted to murder Appala
and in order to obtain the sums for Narasimhulu. The question which we
which he was insured), gave him have to consider in this appeal is
some sweetmeat (halva) in which a 60 whether, on the facts stated above,
25 poison containing arsenic and the accused is guilty of the murder of
mercury in soluble form had been Rajalakshmi. I am of the opinion that
mixed. Appala Narasimhulu ate a the accused did cause the death of
portion of the sweetmeat, and threw Rajalakshmi and is guilty of her
the rest away. 65 murder. The law on the subject is
30 3. This occurred at the house of the contained in Sec..299 to Sec..301 of
accused's brother-in-law where the the Indian Penal Code and the whole
accused had asked Appala question is whether it can properly be
Narasimhulu to meet him. said that, the accused “caused the

70
 death” of the girl, in the ordinary “causes the death” of any one,
sense in which those words should be whether the person intended to be
understood, or whether the accused killed or anyone else. This is clear
was so indirectly or remotely 40 from the first illustration to the
5 connected with her death that he section, “A lays sticks and turf over a
cannot properly be said to have pit, with the intention of thereby
“caused” it. causing death, or with the knowledge
that death is likely to be thereby
5. It is not contended before us that
45 caused Z believing the ground to be
the accused intended to cause the
firm, treads on it, falls in and is
10 death of the girl, and we may take it
killed. A has committed the offence
for the purpose of this appeal that he
of culpable homicide.” Nor is it
did not know that his act was even
necessary that the death should be
likely to cause her death. But it is
50 caused directly by the action of the
clear that he did intend to cause the
offender, without contributory action
15 death of Appala Narasimhulu. In
by the person whose death is caused
order to effect this he concealed
or by some other person. That
poison in a sweetmeat and gave it to
contributory action by the person
him eat. It was these acts of the
55 whose death is caused will not
accused which caused the death of
necessarily prevent the act of the
20 the girl, though no doubt her own
offender from being culpable
action, in ignorantly picking up and
homicide, even if the death could not
eating the poison, contributed to
have occurred without such
bring about the result. Sec..299 of the
60 contributory action, is clear from the
Indian Penal Code says: “Whoever
above illustration, and that
25 causes death by doing an act with the
contributory action by a third person
intention of causing death or with the
will not necessarily prevent the act of
intention of causing such bodily
the offender from being culpable
injury as is likely to cause death, or
65 homicide, even if the death could not
with the knowledge that he is likely
have occurred without such
30 by such act to cause death, commits
contributory action, is clear from the
the offence of culpable homicide.”
second illustration, viz. A knows Z to
6. It is to be observed that the section be behind a bush. B does not know it.
does not require that the offender 70 A, intending to cause, or knowing it
should intend to kill (or know to be likely to cause, Z’s death,
35 himself to be likely to kill) any induces B to fire at the bush. B fires
particular person. It is enough if he and kills Z. Here B may be guilty of

71
 no offence; but A has committed the general idea of cause is that without
offence of culpable homicide. The which another thing, called the
language of the section and the effect, cannot be; and it is divided by
illustration seem to me to show that 40 Aristotle into four kinds known by a
5 neither the contributory action of name of the material, the formal, the
Appala Narasimhulu in throwing efficient and the final cause. The
away part of the sweetmeat, nor the efficient cause is the agent that is
contributory action of the girl in prominent or conspicuous in
picking it up and eating it prevent our 45 producing a change or result.”
10 holding that it was the accused who
9. In the present case I think that the
caused the girl's death.
accused’s action was the efficient
7. The Indian Law Commissioners in cause of the girl’s death, though her
their report (1846) on the Indian own action in picking up and eating
Penal Code call attention to the 50 the poison was also necessary in
15 unqualified use of the words “to order to effect her death; just as in
cause death” in the definition of the illustration given in the Code the
culpable homicide, and rightly point man who laid the turf and sticks over
out that there is a great difference the pit with the intention of causing
between acts which cause death 55 death was held to be the cause of the
20 immediately, and acts which cause death of the man who ignorantly fell
death remotely, and they point out into the pit; although the death would
that the difference is a matter to be not have occurred if he had not of his
considered by the courts when own free will walked to the spot
estimating the effect of the evidence 60 where the pit was.
25 in each case. Almost all, perhaps all,
10. The Code says that the man who
results are caused by a combination
made the pit is guilty of culpable
of causes, yet we ordinarily speak of
homicide, and, in my opinion, the
a result as caused by the most
accused in the present case, who
conspicuous or efficient cause,
65 mixed the poison in sweetmeat and
30 without specifying all the
gave it to be eaten, is equally guilty
contributory causes.
of that offence. The mens rea which
8. In Webster’s Dictionary “cause” is is essential to criminal responsibility
defined as “that which produces or existed with reference to the act done
effects a result; that from which 70 by the accused in attempting to kill
35 anything proceeds and without which Appala Narasimhulu, though not in
it would not exist” and again “the regard to the girl whose death he, in

72
 fact, caused, and that is all that the to be likely to cause death, commits
Sec.. requires. It does not say culpable homicide by causing the
“whoever voluntarily causes death”, death of any person, whose death he
or require that the death actually 40 neither intends or knows himself to
5 caused should have been voluntarily be likely to cause, the culpable
caused. It is sufficient if death is homicide committed by the offender
actually, even though involuntarily, is of the description of which it
caused to one person by an act would have been if he had caused the
intended to cause the death of 45 death of the person whose death he
10 another. intended or knew himself to be likely
to cause.”
11. It is the criminality of the
intention with regard to the latter that 12. The section does not enact any
makes the act done and the rule deducible from the two
consequence which follows from it 50 preceding sections, but it declares in
15 an offence. Turning now to Sec..301, plain language an important rule
Indian Penal Code, we find that deducible, as we have seen, from
culpable homicide is murder if the those sections, just as an explanation
act by which death is caused is done to either Sec..299 or Sec..300, as it
with the intention of causing death, 55 relates to both. It was, therefore,
20 and does not fall within certain most convenient to state the rule by
specified exceptions, none of which means of a fresh section.
are applicable to the present case. It
13. The rule makes it clear that
follows that the accused in the
culpable homicide may be committed
present case is guilty of murder, and
60 by causing the death of a person
25 this is rendered still more clear by
whom the offender neither intended,
Sec.. 301 of the Code. The cases in
now knew himself to be likely, to
which culpable homicide is murder
kill, a rule which though it does not
under Sec..301 are not confined to
lie on the surface of Sec.. 299, yet is,
cases in which the act by which the
65 as we have seen, deducible from the
30 death is caused is done with the
generality of the words “causes
intention of causing death. Sec..301
death” and from the illustration to the
specifies other degrees of intention or
section; and the rule then goes on to
knowledge which may cause the act
state that the quality of the homicide,
to amount to murder; and then Sec..
70 that is, whether it amounts to murder
35 301 enacts that “if a person, by doing
or not, will depend on the intention
anything which he intends or knows
or knowledge which the offender had

73
 in regard to the person intended or by all the Judges that the said Agnes
known to be likely to be killed or was guilty of the murder of the said
injured, and not with reference to his Martin, for the law conjoins the
intention or knowledge with 40 murderous intention of Agnes in
5 reference to the person actually putting the poison into the electuary
killed, a rule deducible from the to kill her husband, with the event
language of the Sec..299 and which thence ensued; i.e. the death of
Sec..300 though not perhaps, lying the said Martin; for the putting of the
on their very surface. 45 poison into the electuary is the
occasion and cause; and the
10 14. The conclusion, then, at which I
poisoning and death of the said
arrive, is that the accused in this case
Martin is the event, quia eventus est
is guilty of murder as defined in
qui ex causa sequitur, et dicuntur
Sec..299 to Sec..300, Indian Penal
50 eventus quia ex causis eveniunt, and
Code. This conclusion is in accord
the stirring of the electuary by the
15 with the view of Norman, Offg., C.
Martin with his knife without the
J., and Jackson, J., in the case
putting in of the poison by Agnes
reported in 13 W.R. Criminal Letters,
could not have been the cause of his
p. 2, where it said: “The prisoner
55 death.” (King's Bench 77 English
gave some poisoned rice water to an
Reports, p. 853 at p. 854) A number
20 old woman who drank part herself
of other English cases have been
and gave part to a little girl who died
referred to, but it is unnecessary to
from the effect of the poison. The
discuss them as we must decide the
offence of the prisoner, under Sec..
60 case in accordance with the
301 of the Indian Penal Code, is
provisions of the Indian Penal Code,
25 murder.”
and these are not necessarily the
15. That the present accused would same as the English Law.
be guilty of murder under English
16. In the result, I would allow the
Law is clear from the case of Agnes
65 appeal by Government and convict
Gore. In that case Agnes Gore mixed
the accused of the murder of
30 poison in some medicine sent by an
Rajalakshmi. The accused was
Apothecary, Martin, to her husband,
originally sentenced to seven years’
which he ate but which did not kill
rigorous imprisonment for having
him, but afterwards killed the
70 attempted to murder Appala
Apothecary, who to vindicate his
Narasimhulu. This sentence was
35 reputation, tasted it himself, having
enhanced to one of transportation for
first stirred it about. “It was resolved

74
 the life by this court acting as a court Companies for the sum of Rs. 4,000
of revision in December, 1910, when in all having paid the premium
this appeal was not before them. himself; that the 2nd premium for
Looking to these facts I am unwilling 40 one of the insurances fell due on the
5 to now impose a sentence of death, 12th January, 1910, and the grace
though it would have been period for its payment would elapse
appropriate if the accused had been on the 12th February, 1910, that the
convicted of murder at the original prosecution 1st witness being at the
trial. 45 same time badly pressed for means of
subsistence asked the accused for
10 17. SUNDARA AIYER, J. – In this
money on the morning of 9th
case the accused Suryanarayana
February; that the latter asked him to
Murthy was charged by the Sessions
meet him in the evening at the house
Court of Ganjam with the murder of
50 of his (the accused's) brother-in-law,
a young girl named Rajalakshmi and
the prosecution 8th witness; that at
15 with attempt to murder one Appala
the house the accused gave the
Narasimhulu by administering poison
prosecution 1st witness a white
to each of them on the 9th February
substance which he called 'halva' but
1910. He was convicted by the
55 which really contained arsenic and
Sessions Court on the latter count but
mercury in soluble form; that the
20 was acquitted on the former count
prosecution 1st witness having eaten
and was sentenced to seven years'
a portion of the halva threw aside the
rigorous imprisonment. He appealed
rest; that it was picked up by the
against the conviction and sentence
60 daughter of the prosecution 8th
in Criminal Appeal No. 522 of 1910,
witness, the deceased Rajalakshmi,
25 and this court confirmed the
who ate a portion of it herself and
conviction and enhanced the sentence
gave another portion to child of a
to transportation for life.
neighbour; and that both Rajalakshmi
18. The present appeal is by the 65 and the other child were seized with
Government against his acquittal on vomiting and purging and finally
30 the charge of murdering died, Rajalakshmi some four days
Rajalakshmi. The facts as found by after she ate the halva and the child
the lower court are that the accused, two days earlier.
who was a clerk in the Settlement
70 19. After the prosecution 1st witness
Office at Chicacole, got the life of
had thrown away the halva both he
35 Appala Narasimhulu, the prosecution
and the accused went to the bazaar
1st witness, insured in two Insurance

75
 and the accused gave prosecution 1st Judge's finding that the halva was not
witness some more halva. The given to the girl by the accused but,
prosecution 1st witness suffered in picked up by her after the
consequence for a number of days 40 prosecution 1st witness had thrown it
5 but survived. The accused, as already way. The question we have to decide
stated, has been sentenced to is whether, on these facts, the
transportation for life for attempting accused is guilty of the murder of the
to murder the prosecution 1st witness. girl.
The case for the prosecution with
45 21. At the conclusion of the
10 reference to the poisoning of
arguments we took time to consider
Rajalakshmi was, as sworn to by the
our judgment, as the point appeared
prosecution 1st witness, that, when
to us to be one of considerable
the accused gave him the halva, the
importance, but we intimated that,
girl asked for a piece of it and that
50 we would not consider it necessary,
15 the accused, though he reprimanded
in the circumstances, to inflict on
her at first, gave her a small portion.
him the extreme penalty of the law. It
But I agree with the learned Sessions
is clear that the accused had no
Judge that this story is improbable.
intention of causing the death of the
20. The girl was the accused's own 55 girl Rajalakshmi. But it is contended
20 niece being his sister's daughter. He that the accused is guilty of murder
and her father (the prosecution 8th as he had the intention of causing the
witness) were on good terms. He had death of the prosecution 1st witness,
absolutely no motive to kill her, and and it is immaterial that the had not
there was no necessity for giving her 60 the intention of causing the death of
25 the halva. The accused, in his the girl herself. Sec.. 299, Indian
statement to the Magistrate (the Penal Code, enacts that ‘whoever
prosecution 22nd witness) soon after causes death by doing an act with the
the occurrence, said that the girl had intention of causing death, or with
picked up the halva and eaten it. He 65 the knowledge that he is likely by
30 had made a similar statement to the such act to cause death, commits the
prosecution 8th witness when the offence of culpable homicide.”
latter returned to his house on the Sec..300 says “culpable homicide is
evening of the 9th immediately after murder, if the act by which the death
the girl had eaten it. This statement is 70 is caused is done with the intention
35 in accordance with the probabilities of causing death.” Sec.. 301 lays
of the case, and I accept the Sessions down that "if a person, by doing

76
 anything which he intends or knows of the poison or not; nor would it
to be likely to cause death commits make any difference if, instead of the
culpable homicide by causing the poison being picked up by the girl
death of any person, whose death he 40 and eaten by herself, she gave it to
5 neither intends nor knows himself to someone else and that one to another
be likely to cause, the culpable again and so on if it changed any
homicide committed by the offender number of hands. The accused would
is of the description of which it be guilty of the murder of one and all
would have been if he had caused the 45 of the persons who might take the
10 death of the person whose death he poison, though it might have been
intended or knew himself to be likely impossible for him to imagine that it
to cause.” would change hands in the manner
that it did.
22. The contention of the learned
Public Prosecutor, to put it very 50 23. The contention practically
15 shortly, is (1) that it was the amounts to saying that the
accused's act that caused the death of intervention of other agencies, and of
the girl and (2) that the accused had any number of them, before death
the intention of causing death when results, would make no difference in
he gave the poison to the prosecution 55 the guilt of the accused, that causing
20 1st witness and was, therefore, guilty death does not mean being the
of any death that resulted from his proximate cause of the death, but
act. He urges that the sections of the merely being a link in the chain of
Penal Code practically reproduce the the cause or events leading to the
English Law according to which the 60 death and that further any knowledge
25 causing of death with malice on the part of the accused that such a
aforethought, though the malice may chain of events might result from his
not be directed against a particular act is quite immaterial. It is, prima
individual whose death ensues, facie, difficult to uphold such an
would amount to murder. Before 65 argument. Now is there anything in
30 referring to the English Law, I shall the sections of the Penal Code to
consider the provisions of the Penal support it? Sec..39 provides that "a
Code bearing on the subject. If Mr. person is said to cause an effect
Napier's contention be sound it 'voluntarily' when he causes it by
would make no difference whether 70 means whereby he intended to cause
35 Appala Narasimhulu, the prosecution it, or by means which, at the time of
1st witness, also died in consequence employing those means, he knew or

77
 had reason to believe to be likely to foreseen by him as likely to occur?
cause it." The illustration to the Are we to hold that a man who
section is that if a person sets fire by knows that his act is likely to cause
night to an inhabited house in a large 40 the death of one person is guilty of
5 town for the purpose of facilitating the death of all the others who
robbery, and thus causes the death of happen to die, but whose death was
a person, he would be taken to have far beyond his imagination? Such a
caused the death voluntarily if he proposition it is impossible to
knew that he was likely to cause 45 maintain in criminal law. Sec.. 301 of
10 death and may even be sorry that the Indian Penal Code has reference
death had been caused by his act. to a case where a person intending to
cause the death of A, say by striking
24. The section and the illustration
or shooting him, kills B because B is
both show that causation with respect
50 in the place where he imagined A to
to any event involves that the person
be, or B rushes in to save A and
15 should have knowledge that the event
receives the injury intended for A.
was likely to result from his act. Sec..
The reason for no exculpating the
299, Indian Penal Code, in my
wrong-doer in such cases is that he
opinion, does not lead to a different
55 must take the risk of some other
conclusion. But before dealing with
person being in the place where he
20 it, I must turn to Sec.. 301, Indian
expected to find A, or, of someone
Penal Code. That section apparently
else intervening between him and A.
applies to a case where the death of
the person, whose death was intended 25. The section is a qualification of
or known to be likely to occur by the 60 the rule laid down in Sec..299 and is
25 person doing the act, does not, as a evidently confined to cases where the
fact occur but the death of someone death of the person intended to
else occurs as the result of the act known to be likely to be killed does
done by him. It evidently does not not result. If the public Prosecutor's
apply where the death both of the 65 general proposition were right,
30 person, whose death was in Sec..301 of the Indian Penal Code
contemplation, and of another person would seem to be unnecessary, as
or persons, has occurred. Can it be Sec..299 would be quite enough. If a
said that, in such a case, the doer of person is intended by Sec..299 to be
the act is guilty with reference to 70 held to be guilty for deaths which are
35 those whose death was not intended not known to be likely to occur, then
by him and could not have been that Sec.. might itself have been

78
 worded differently so as to show that the ordinary course of events to result
the particular death caused need not from the act. This rule will certainly
have been intended or foreseen and hold good where a person's act set in
what is more important, Sec..301 of 40 motion only physical causes which
5 the Indian Penal Code would not be lead to the effects actually occurring;
limited to cases where the death of when the effect is not due merely to
the particular individual intended or physical causes set in operation by an
foreseen does not occur. act, but other persons' wills
45 intervening are equally necessary
26. The general theory of the
causes with the original act to lead to
10 criminal law is that the doer of an act
the result, it is more difficult to
is responsible only for the
decide whether the act in question
consequences intended or known to
can be said to be the cause of the
be likely to ensue; for otherwise he
50 effect finally produced.
could not be said to have caused the
15 effect “voluntarily”, and a person is 28. The Code throws very little light
not responsible for the involuntary on the question. Ordinarily, a man is
effects of his acts. Illustrations A and not criminally responsible for the
B, in my opinion, support this view. acts of another person, and ordinarily
Sec..323 and Sec..324 show that a 55 his act should not be held to be the
20 person is responsible in the case of cause of a consequence which would
hurt or grievous hurt only for what he not result without the intervention of
causes voluntarily; and Sec..321 another human agency. Sir J. Fitz
shows that hurt to the particular James Stephen in his History of the
person in question must have been 60 Criminal Law of England, Vol. III, p.
25 intended or foreseen. In the eye of 8, says: “A more remarkable set of
the law, no doubt, a man will be cases are those in which death is
taken to have foreseen what an caused by some act which does
ordinary individual ought to foresee, unquestionably cause it, but does so
and it will not be open to him to 65 through the intervention of the
30 plead that he himself was so foolish independent voluntary act of some
as, in fact, not to foresee the other person. Suppose, for instance,
consequence of his act. A tells B of facts which operate as a
motive to B for the murder of C. It
27. A person might, in some cases,
70 would be an abuse of language to say
be responsible for effects of which
that A had killed C, though no doubt
35 his act is not the proximate cause
where the effect is likely to arise in

79
 he has been the remote cause of C’s said to have ‘reason to believe’ a
death.” thing if he has sufficient cause to
believe that thing but not otherwise.”
29. The learned author proceeds to
40 A trader who sells a basket of
point out that, even when a person
poisoned oranges may be said to
5 counsels, procures or commands
have sufficient 'reason to believe' that
another to do an act, he would be
the buyer would give them to various
only guilty as an abettor but not as a
persons to eat; but one who gives a
principal offender whose act caused
45 slice of an orange to another to eat on
the result, say murder. This is the
the spot could not be said to have
10 well settled principle of the English
sufficient ‘reason to believe’ that he
Law, though there appear to be one
would give half of that slice to
or two exceptions, to be hereafter
another person to eat or that he
pointed out. No such exceptions are
50 would throw away a portion and that
mentioned in the Indian Code. They
another would eat it. The poison was
15 may perhaps be recognised where the
thrown aside here not by the accused
doer of the act knew that it would be
but by the prosecution 1st witness.
likely that his own act would lead
The girl's death could not have been
other persons, not acting wrongfully,
55 caused but for the intervention of the
to act in such a manner as to cause
prosecution 1st witness's agency. The
20 the effect actually produced. But the
case, in my opinion, is not one
scope of the exceptions cannot cover
covered by Sec.. 301 of the Indian
those cases where the doer could not
Penal Code. The conclusion,
foresee that other persons would act
60 therefore, appears to follow that the
in the manner indicated above. This
accused is not guilty of culpable
25 is the principle adopted in
homicide by doing an act which
determining civil liability for wrongs.
caused the death of the girl. Mr.
See the discussion of the question in
Napier, as already mentioned, has
Baker v. Snell [(1908) 2 KB 825]. A
65 contended that the law in this country
stricter rule cannot be applied in
on the question is really the same as
30 cases of criminal liability.
in England; and he relies on two
30. Now, can it be said that the English cases in support of his
accused, in this case, knew it to be contention, viz., Saunder case and
likely that the prosecution 1st witness 70 Agnes Gore case.
would give a portion of the girl
31. I may preface my observations on
35 Rajalakshmi? According to Sec.. 26
the English Law by citing Mr.
of the Indian Penal Code “a person is

80
 Mayne's remark that “culpable and all cases have to be brought
homicide is perhaps the one branch under it.
of criminal law in which an Indian
32. Knowledge that the act is likely
student must be most careful in
40 to cause death is not part of the
5 accepting the guidance of English
definition. Nor have we any words to
authorities.” According to the
import what is contained in the
English Law “murder is the unlawful
explanations to Sec..299 of the
killing, by any person of sound
Indian Penal Code or in Cls. 2, 3 and
memory and discretion, of any
45 4 of Sec.. 300. The law was worked
10 person under the King’s peace, with
out of England to its present
malice aforethought, either express
condition by a series of judicial
or implied by law. This malice
decisions. This accounts for the
aforethought which distinguishes
statement that general malice is
murder from other species of
50 enough and that it need not be
15 homicide is not limited to particular
directed against the particular
ill-will against the persons slain, but
individual killed. Hence also the
means that the fact has been attended
proposition that wicked intention to
with such circumstances as are the
injure is enough and intention to kill
ordinary symptoms of a wicked,
55 that individual is not necessary. See
20 depraved, and malignant spirit; a
Roscoe’s Criminal Evidence, 13th
heart regardless of social duty, and
Edition, pages 617 to 619. Malice
deliberately bent upon mischief. Any
again is explained to mean malice
formed design of doing mischief may
implied by law as well as malice in
be called malice; and therefore, not
60 fact. The result is, the law in England
25 only killing from premeditated hatred
is not as different from that in India
or revenge against the person killed,
as a comparison of the definitions
but also, in many other cases, killing
might, at first sight, indicate. This is
accompanied with circumstances that
apparent from the statement of the
show the heart to be previously
65 English Law at pp. 20-22, Vol. III of
30 wicked is adjudged to be killing of
Stephen’s History of the Criminal
malice aforethought and,
Law.
consequently, murder.” – RUSSELL
on Crimes and Misdemeanors, 7th 33. The statement, however, shows
Edition, Volume I, p. 655. It will be that the law is not identical in both
35 observed that, in this definition, 70 countries. In England an intention to
malice is made an essential requisite, commit any felony will make the act
murder if death results. Again “if a

81
 child under years of discretion, a endeavored to dissuade his wife from
madman, or any other person of giving the apple to the child. On the
defective mind, is incited to commit other hand, the author says: “If A
a crime, the inciter is the principal ex 40 commands or counsels B to kill C
5 necessitate, though absent when the and before the fact is done A repents
thing was done. In point of law, the and comes to B and expressly
act if he were innocent agent is as discharges him from the fact and
much the act of the procurer as if he countermands it, if after this
were present and did the act 45 countermand B does it, it is murder
10 himself.” See Russell on Crimes, in B; but A is not accessory."
Vol. I, page 104.
35. The decision apparently
34. The Indian law does not make the proceeded on the English rule that
abettor guilty of the principal offence the innocence of the intervening
in such circumstances. There is also a 50 agent had the effect of holding the
15 presumption in the English Law that prisoner liable as the principal
“all homicide is malicious and offender. In Agnes Gore's case, the
murder, until the contrary appears wife who mixed rats-bane in a potion
from circumstances of alleviation, sent by the apothecary to her husband
excuse or justification; and it is 55 which did not kill him but killed the
20 incumbent upon the prisoner to make apothecary who, to vindicate his
out such circumstances to the reputation, tasted it himself, having
satisfaction of the Court and Jury, first stirred it up, was held guilty of
unless they arise out of the evidence murder because the wife had the
produced against him.” There is no 60 intention of killing the husband
25 such presumption here. In Saunder though not of killing the apothecary.
case as stated in Roscoe’s Criminal It is possible that an Indian court may
Evidence, p. 154, the prisoner hold in such a case that it was the
intending to poison his wife gave her duty of the wife to warn and prevent
a poisoned apple which she, ignorant 65 the apothecary from tasting the
30 of its nature gave to a child who took potion and that she was guilty of an
it and died. This was held murder in illegal omission in not doing so.
the husband, although being present Whether the case might not come
he endeavored to dissuade his wife under Sec.. 301, Indian Penal Code,
from giving it to the child. In Hale’s 70 also it is unnecessary to consider.
35 Pleas of the Crown, Vol. I, p. 436, it
36. In the Queen v. Latimer the
is not stated that the prisoner
prisoner, in striking at a man, struck

82
 and wounded a woman under 24 and actually administered it with her own
25 Vic., C. 100 Sec.. 20, for hand.” This decision also, no doubt,
unlawfully and maliciously 40 proceeded on the ground of want of
wounding her, the Jury found that the discretion in the intervener, the child.
5 blow 'was unlawful and malicious
37. The Indian courts may hold that a
and did in fact wound her, but that
person who keeps poison at a place
the striking of her was purely
where others might have access to it
accidental and not such a
45 must be taken to know that death is
consequence of the blow as the
likely to result from the act. It is clear
10 prisoner ought to have expected.’
that English decisions are not always
The Court of Crown Cases Reserved
a safe guide in deciding cases in this
held that the prisoner was guilty. The
country where the provisions of the
decision proceeded upon the words
50 Penal Code must be applied. In
of statute. Sec.. 18 enacted that
Shankar Balkrishna v. King-
15 “whosoever shall unlawfully and
Emperor, the Calcutta High Court
maliciously cause any grievous
held that the prisoner in the case, an
bodily harm to any person with
Assistant Railway Station Master,
malicious intent shall be guilty of
55 was not liable where death would not
felony.” Then Sec.. 20, leaving out
have resulted if the guard had not
20 the intent, provided any grievous
acted carelessly, as the prisoner could
bodily harm upon any other person
not be taken to know that the
shall be guilty of misdemeanour.
accident to the train which resulted in
Lord Coleridge, C. J., pointed out
60 the loss of human life was likely to
that the language of Sec..18 and
lead to death. In Empress v. Sahae
25 Sec..20 was different and that the
Rae, which may be usefully
intention should be against the
compared with the Queen v. Latimer
person injured. In Regina v. Michael,
and where also the prisoner was held
where a bottle containing poison was
65 guilty, the decision was put on the
put on the mantel-piece where a little
ground that the prisoner knew it to be
30 child found it and gave part of the
likely that the blow would fall on a
contents to the prisoner' child who
person for whom he had not intended
soon after died, the Judges were of
it.
opinion that “the administering of the
poison by the child was under the 70 38. Holding, as I do, that, in the
35 circumstances of the case as much in circumstances of this case, the
point of law an administering by the prisoner could not be said to have
prisoner as if the prisoner had known that it was likely that the

83
 prosecution 1st witness would throw This was at the house of the
aside the halva so as to be picked up accused's brother-in-law, where
and eaten by some one else and that Appala Narasimhulu had called by
the prisoner was not responsible, in 40 appointment. The man ate a portion
5 the circumstances, for the voluntary of the halva, but not liking its taste
act of prosecution 1st witness, I must threw away the remainder on the
come to the conclusion that the spot. Then, according to the view of
prisoner is not guilty of the murder of the evidence accepted by my learned
the girl Rajalakshmi. It is not 45 brothers Benson and Sundara Aiyar
10 contended that there was a legal duty JJ., as well as by the Sessions Judge,
on the part of the accused to prevent a girl of 8 or 9 years named
the girl from eating the halva and that Rajalakshmi, the daughter of the
he was guilty of murder by an illegal accused's brother-in-law, picked up
omission. I would uphold the finding 50 the poisoned halva, ate a portion of it
15 of acquittal of the lower court and herself, and gave some to another
dismiss the appeal. child of the house. Both the children
died of the effects of the poison, but
39. BENSON, J.- As we differ in our
Appala Narasimhulu, the intended
opinion as to the guilt of the accused,
55 victim, survived though after
the case will be laid another Judge of
considerable suffering. It is also
20 this court, with our opinions under
found as a fact, and I agree with the
Sec..429, Criminal Procedure Code.
finding, that Rajalakshmi and the
This appeal coming on for hearing
other girl ate the halva without the
under the provisions of Sec.. 429 of
60 knowledge of the accused, who did
the Code Criminal Procedure.
not intend to cause their deaths.
25 40. RAHIM, J. - The question for Upon these facts Benson J. would
decision is whether the accused find the accused guilty of the murder
Suryanarayanamurthy is guilty of an of Rajalakshmi, while Sundara Aiyar
offence under Sec..302, Indian Penal 65 J., agreeing with the Sessions Judge,
Code, in the following holds a contrary view.
30 circumstances. He wanted to kill one
41. The question depends upon the
Appala Narasimhulu on whose life
provisions of the Indian Penal Code
he had effected rather large
on the subject as contained in
insurances and for that purpose gave
70 Sec..299 to Sec..301. The first point
him some halva (a sort of sweet
for enquiry is whether the definition
35 meat), in which he had mixed arsenic
of culpable homicide as given in
and mercury in a soluble form, to eat.

84
 Sec..299 requires that the accused's is, an intention to destroy human life,
intention to cause death or his is found, I do not see why it should
knowledge that death is likely to be make any difference whether the act
caused by such act, or is it sufficient 40 done with such intention causes the
5 for the purposes of the section. if death of the person aimed at or of
criminal intention or knowledge on someone else. Illustration (a) to Sec..
the part of the accused existed with 299 makes it quite clear that the
reference to any human being, legislature deliberately employed
though the death of the person who 45 general and unqualified language in
10 actually fell a victim to the accused's order to cover cases where the person
act was never compassed by him. I whose death is caused by the act of
find nothing in the words of the the accused was not the person
section. which would justify the intended to be killed by him but
limited construction. Sec..299 says: 50 some other person. Sec..301 also
15 "Whoever causes death by doing an supports this construction as it
act with the intention of causing assumes that the accused in such
death, or with the intention of cases would be guilty of culpable
causing such bodily injury as is likely homicide; and I may here point out
to cause death, or with the 55 that the object of this section is to lay
20 knowledge that he is likely by such down that the nature of culpable
act to cause death, commits the homicide of which the accused in
offence of culpable homicide." these cases would be guilty, namely
whether murder or not, would be the
42. The language is perfectly general;
60 same as he would have been guilty
all that it requires is that there should
of, if the person whose death was
25 be an intention to cause death or a
intended to be brought about had
knowledge that death is likely to be
been killed.
the result, and there is nothing in
reason which, in my opinion, would 44. Now the first paragraph of Sec..
warrant us in saying that the 65 300 declares that culpable homicide
30 homicidal intention or knowledge shall be deemed to be murder if the
must be with reference to the life of act by which death is caused is done
the person whose death is actually with the intention of causing death,
caused. using so far the very words of Sec..
70 299. In the 2nd and 3rd paragraphs of
43. The law affords protection
Sec..300 the language is not quite
35 equally to the lives of all persons,
identical with that of the
and once the criminal intention, that

85
 corresponding provisions in girl from eating the sweetmeat. These
Sec..299, and questions may possibly being the facts, there can be,
arise whether where the fatal act was however, no doubt, that the act of the
done not with the intention of 40 accused in mixing arsenic in the
5 causing death but with the intention halva and giving it to Appala
of causing such bodily injury as is Narasimhulu in Rajalakshmi's house
likely to cause death, or with the was one cause in the chain of causes
knowledge that the accused is likely which brought about the girl's death.
by such act to cause death, the 45 The question then is whether this act
10 offence would be one of murder or of the accused was such a cause of
culpable homicide not amounting to Rajalakshmi's death as to justify us in
murder. But it is not necessary for imputing it to such act. In my
me to express any opinion on these opinion it was. Obviously it is not
matters as in the present case the 50 possible to lay down any general test
15 prisoner undoubtedly intended to as to what should be regarded in
cause death. criminal law as the responsible cause
of a certain result when that result, as
45. The next point for consideration
it often happens, is due to a series of
is whether the death of Rajalakshmi
55 causes.
was caused by the accused's act
20 within the meaning of Sec..299. The 46. We have to consider in each case
question is really one of fact or of the relative value and efficiency of
proper inference to be drawn from the different causes in producing the
the facts. That girl's death was caused effect and then to say whether
by eating the sweetmeat in which the 60 responsibility should be assigned to a
25 accused had mixed poison and which particular act or not as the proximate
he brought to the house where the and efficient cause. But it may be
girl lived in order to give it to the observed that it cannot be a sufficient
man for whom it was intended. It criterion in this connection whether
was given to him, but he, not 65 the effect could have been produced
30 relishing the taste of it, threw it in the case in question without a
down. The deceased girl soon particular cause, for it is involved in
afterwards picked it up and ate it. But the very idea of a cause that the result
the accused was not present when could not have been produced
Rajalakshmi ate it, and we may even 70 without it. Nor would it be correct to
35 take it that, if the accused had been lay down generally that the
present, he would have prevented the intervention of the act of a voluntary

86
 agent must necessarily absolve the mixing the poison in the sweetmeat
person between whose act and the could in that case hardly be said to
result it intervenes. have caused her death within the
40 meaning of Sec.. 299. On the other
47. For instance, if A mixes poison in
hand, suppose Appala Narasimhulu,
5 the food of B with the intention of
finding Rajalakshmi standing near
killing B and B eats the food and is
him and without suspecting that there
killed thereby, A would be guilty of
was anything wrong with the
murder even though the eating of the
45 sweetmeat, gives a portion of it to her
poisoned food which was the
and she ate it and was killed, could
10 voluntary act of B intervened
be said that the accused who had
between the act of A and B's death.
given the poisoned sweetmeat to
So here the throwing aside of the
Appala Narasimhulu was not
sweetmeat by Appala Narasimhulu
50 responsible for the death of
and the picking and the eating of it
Rajalakshmi? I think not. And there
15 by Rajalakshmi cannot absolve the
is really no difference between such a
accused from responsibility for his
case and the present case.
act. No doubt the intervening acts or
events may sometimes be such as to 48. The ruling reported in 13 R. Cr.
deprive the earlier act of the 55 Letters, p. 2, also supports the view
20 character of an efficient cause. Now, of the law which I have tried to
suppose, in this case Appala express. Reference has been made to
Narasimhulu had discovered that the the English Law on the point and
sweetmeat was poisoned and then though the case must be decided
gave it to Rajalakshmi to eat, it is to 60 solely upon the provisions of the
25 his act that Rajalakshmi's death Indian Penal Code, I may observe
would be attributed and not to the that there can be no doubt that under
accused's. Or suppose Appala the English Law as well the accused
Narasimhulu, either suspecting that would be guilty of murder. In
the sweetmeat was poisoned or 65 English Law it is sufficient to show
30 merely thinking that it was not fit to that the act by which death was
be eaten, threw it away in some caused was done with malice
unfrequented place so as to put it out aforethought, and it is not necessary
of harm's way and Rajalakshmi that malice should be towards the
happening afterwards to pass that 70 person whose death has been actually
35 way, picked it up, and ate it and was caused. This is well illustrated in the
killed, the act of the accused in well-known case of Agnes Gore and

87
 in Saundercase and also in Regina v.
Michael. No doubt "malice
35
aforethought," at least according to
the old interpretation of it as
5 including an intention to commit any
felony, covers a wider ground in the
English Law than the criminal
intention or knowledge required by
Sec..299 and Sec..300, Indian Penal
10 Code, but the law in Indian on the 40
point in question in this case is
undoubtedly, in my opinion, the
same as in England. Agreeing
therefore with Benson J., I set aside
15 the order of the Sessions Judge
acquitting the accused of the charge
of murder and convict him of an 45
offence under Sec..302, Indian Penal
Code. I also agree with him that, in
20 the circumstances of the case, it is
not necessary to impose upon the
accused the extreme penalty of the
law, and I sentence the accused under
Sec..302, Indian Penal Code, to 50
25 transportation for life.

55
30

88
 35 meantime convicted of an offence
under Sec.. 302 and a sentence of
transportation for life was imposed
on him, which was confirmed by the
11. High Court.

5 Kapur Singh v. State of PEPSU AIR 40 3. The appellant was arrested

1956 SC 654 N.H. BHAGWATI, J. thereafter and trial resulted in his
– conviction under Sec..302.

1. Special leave was granted to the 4. The learned Sessions Judge,

appellant limited to the question of awarded him a sentence of death
10 sentence only. 45 subject to confirmation by the High
Court. The High Court, in due
2. About a year before the date of the course, confirmed the death sentence.
occurrence, Bachan Singh, son of the
deceased caused a severe injury on 5. The motive which actuated the
the leg of Pritam Singh, son of the appellant in committing this crime
15 appellant, resulting in the amputation 50 was to wreak his vengeance on the
of his leg. The appellant harboured a family of Bachan Singh. It appears
grudge against the father and son that the appellant intended to inflict
since that time and he was trying to on the arms and legs of the deceased
take revenge on a suitable such injuries as would result in the
20 opportunity presenting itself. That 55 amputation of both the arms and both
opportunity came on 30th September, the legs of the deceased, thus
1952 when the appellant encountered wreaking his vengeance on the
the deceased, and he and his deceased for what his son, Bachan
companion, one Chand Singh, were Singh, had done to his own son
25 responsible for the occurrence. 60 Pritam Singh.
Chand Singh held the deceased by 6. The fact that no injury was
the head and the appellant inflicted as inflicted on any vital part of the body
many as 18 injuries on the arms and of the deceased goes to show in the
legs of the deceased with a gandasa. circumstances of this case that the
30 2. It is significant that out of all the 65 intention of the appellant was not to
injuries which were thus inflicted kill the deceased outright. He
none was inflicted on a vital part of inflicted the injuries not with the
the body. The appellant absconded intention of murdering the deceased,
and his companion was in the but caused such bodily injuries as, he

89
 must have known, would likely cause
death having regard to the number
and nature of the injuries. We,
therefore, feel that under the
5 circumstances of the case the proper
section under which the appellant
should have been convicted was Sec.. 35
304(1) and not Sec.. 302. We,
accordingly, alter the conviction of
10 the Appellant from that under Sec..
302 to one under Sec.. 304(1) and
instead of the sentence of death
which has been awarded to him,
which we hereby set aside, we award 40
15 him the sentence of transportation for
life.

45
20

50
25

55
30

90
 appellant to leave the house.
Thereupon, the appellant left the
house, taking her three children aged
12. 7years, 5years and 1½ years and
Gyarsibai v. The State AIR 1953 40 saying that on account of her sister-
5 M.B. 61 DIXIT, J..- in-law she would jump into a well.
Soon after, the appellant went to a
1. The appellant has been convicted well in the village and threw herself
by the Sessions Judge of Shajapur of into the well along with her three
an offence under Sec..302, Penal 45 children. A few hours after, some
Code, for the murder of her three inhabitants of the village found
10 children and also of an offence under Gyarasibai supporting herself on an
Sec.. 309, Penal Code, for an attempt edge of the well and the three
to commit suicide. She has been children dead in the well. The
sentenced to transportation for life 50 appellant admitted before the
under Sec..302, Penal Code, and to Committing Magistrate as well as
15 six months’ simple imprisonment before the Sessions Judge that she
under Sec..309, Penal Code. Both jumped into the well together with
these sentences have been directed to her children on account of her sister-
run concurrently. She has now 55 in-law Kaisar Bai's harassment.
preferred this appeal from jail against
20 the convictions and sentences. 3. The facts have been amply
established by the prosecution
2. The facts of this case are very evidence. From the statement of
simple. The prosecution alleged that Kaisar Bai and Narayan it is clear
the appellant, her children, her 60 that on the morning of the day of
husband Jagannath and her sister-in- occurrence, there was a quarrel
25 law Kaisar Bai used to reside between Kaisar Bai and Gyarasi Bai
together. There were constant and during this quarrel when Kaisar
quarrels between the appellant and Bai asked the appellant to leave the
her sister-in-law and very often 65 house, she left the house with her
Jagannath used to slap the appellant three children saying that she would
30 for picking up a quarrel with her jump into a well. Kaisar Bai also
sister-in-law Kaisar Bai. It is alleged admits that sometimes Jagannath
that one such quarrel took place on used to give two or three slaps to the
the morning of 14-8-1951 when 70 appellant for quarrelling with her.
Jagannath was away from his home. The other prosecution witnesses
35 In this quarrel Kaisar Bai asked the
91
 deposed to the recovery of the bodies causing such bodily injury as is
of three children and to the rescue of likely to cause the death of person or
the appellant. There is no eye witness sufficient in the ordinary course of
of the fact that the appellant jumped 40 nature to cause death cannot be
5 down the well herself together with applied to the present case. The only
her three children. But from the clause of Sec..300, Penal Code,
statements of Kaisar Bai, Narayan which then remains for consideration
and the statement of the appellant is the 4th clause. This clause says: If
herself before the Committing 45 the person committing the act knows
10 Magistrate and the Sessions Judge, I that it is so imminently dangerous
am satisfied that the version given by that it must, in all probability, cause
the appellant in her own statement is death, or such bodily injury as is
correct and that she jumped into the likely to cause death and commits
well herself along with her three 50 such act without any excuse for
15 children in order to escape incurring the risk of causing death or
harassment at the hands of her sister- such injury as aforesaid.
in-law Kaisar Bai.
5. It will be seen from this clause that
4. On these facts the only question if death is caused merely by doing an
that arises for consideration is 55 act with the knowledge that it is so
20 whether act of the appellant in imminently dangerous that it must, in
jumping down into a well together all probability cause death, then the
with her three children is murder. I act is not murder as is defined in
think this act of the appellant clearly clause 4, but is mere culpable
falls under the 4th clause of Sec.. 60 homicide not amounting to murder.
25 300, Penal Code which defines In order that an act done with such
murder. On the facts it is clear that knowledge should constitute murder,
the appellant Gyarasi Bai had no it is essential that it should have been
intention to cause the death of any of committed "without any excuse for
her children and she jumped into the 65 incurring the risk of causing death or
30 well not with the intention of killing such bodily injury". The question,
her children but with the intention of therefore, is whether when the
committing suicide. That being so, appellant jumped into the well
Clauses. 1, 2 and 3 of Sec..300, Penal together with her three children, she
Code, which apply to cases in which 70 had the knowledge that her act was
35 death is caused by an act done with so imminently dangerous, as to cause
the intention of causing death or in all probability the death of her

92
 children and further whether if she short of insanity. In my opinion, the
had such knowledge her act in act of the appellant in jumping into a
jumping into a well with her children 40 well with her children is clearly one
was "without any excuse for done by the appellant knowing that it
5 incurring the risk of causing death or must in all probability cause the
such bodily injury as is mentioned in death of her children. I do not find
clause 4 of Sec..300, Penal Code. any circumstances to come to the
Now I think it cannot be said in the 45 conclusion that the appellant had
present case, with any degree of some excuse for incurring the risk of
10 force that when the appellant jumped causing the death of her children.
into a well with her children she had The fact that there were quarrels
not the knowledge that her act was so between the appellant and her sister-
imminently dangerous as to cause the 50 in-law and that her life had become
death of her children. Her life might unbearable on account of this family
15 have become unbearable owing to discord, cannot be regarded as a valid
domestic troubles and perhaps on justification for appellant's act of
account of these troubles, she jumping into a well with her
decided to take her own life. I am 55 children. The words used in clause 4
also prepared to hold that on account to Sec..300, Penal Code are “without
20 of the discord in the house, the any excuse for incurring the risk of
appellant was subjected to severe causing death or such injury as
exasperation and to a long course of aforesaid”. These words indicate that
conduct causing suffering and 60 the imminently dangerous act is not
anxiety. But when on account of all murder if it is done to prevent a
25 these reasons, she left the house on greater evil. If the evil can be
the day of the occurrence saying that avoided without doing the act then
she would jump into a well with her there can be no valid justification for
children, it cannot be said that she 65 doing the act which is so imminently
was in such an abnormal state of dangerous that it must, in all
30 mind that could not have any probability, cause death. Here there
knowledge of the nature of her act. is no material, whatsoever, to come
Every sane person – and in this case to the conclusion that the appellant
we are bound to take it that the 70 could not have escaped the
appellant was sane – is presumed to harassment at the hands of her sister-
35 have some knowledge of the nature in-law except by jumping herself into
of his act. This knowledge is not a well with her three children. I am,
negatived by any mental condition therefore, inclined to think that the

93
 appellant's act is clearly murder necessary to consider whether upon
under clause 4 of Sec.. 300, Penal the facts of that case, the conclusion
Code. that the woman was guilty of
40 culpable homicide not amounting to
6. I must, however, notice two cases
murder was justified. But it must be
5 in which the question of the offence
observed that the learned judges of
constituted by an act of a woman
the Allahabad High Court thought
deliberately jumping into a well with
that the fear of her husband and the
a child in circumstances somewhat
45 panic into which she was thrown
different to those present in this case,
could be an excuse for incurring the
10 has been considered. The first case is
risk of causing death. Here there is
one reported in – Emperor v.
no question of any panic or fright of
Dhirajia [ILR (1940) All 647]. In this
the appellant. It is, no doubt, true, as
case a village woman left her home
50 the learned Judges of the Allahabad
with her six months old baby in her
High Court say that in assessing what
15 arms on account of her husband's ill-
is excuse or is not excuse, we must
treatment; after she had gone some
consider the state of mind in which
distance from the home, she turned
the accused person was. But I think
round and saw her husband pursuing
55 in considering the question we must
her. She became panicky and jumped
take into account the state of mind of
20 down into a well nearby with the
a reasonable and legally sane person
baby in her arms. The baby died, but
and then determine whether the risk
the woman survived. On these facts,
of causing death could have been
the learned judges of the Allahabad
60 avoided. On this test, there can be no
High Court held that an intention to
room for thinking in the present case
25 cause the death of the child could not
that the appellant was justified in
be attributed with the knowledge that
jumping into a well with her three
such an imminently dangerous act as
children merely on account of her
jumping down the well was likely to
65 sister-in-law's attitude towards her.
cause the child's death. But the
The other decision is of the Bombay
30 learned judges held that considering
High Court in – Supadi Lukada v.
the state of panic she was in, the
Emperor [AIR 1925 Bom 310]. In
culpable homicide did not amount to
that case too, a girl of about 17 years
murder as there was an excuse for
70 of age who was carrying her baby on
incurring the risk of causing death.
her back jumped into a well because
35 Mst. Dhirajia was thus found guilty
her husband had ill-treated her and
under Sec..304, Penal Code. It is not
had prevented her from returning to

94
 her parents. The learned judges of the case and also to the fact that the
Bombay High Court held that when appellant, though not legally insane,
the girl attempted to commit suicide was not and could not be in a normal
by jumping into a well she could not 40 state of mind when she jumped into a
5 be said to have been in a normal well with her three children, I think
condition and was not, therefore, this is not a case deserving of a
even aware of the child's presence severe punishment. I would,
and that as she was not conscious of therefore, recommend to the
the child, there was not such 45 Government to commute the
10 knowledge as to make Sec.. 300 (4) sentence of transportation for life to
applicable. The learned judges of the one of three years’ rigorous
Bombay High Court found the girl imprisonment. The sentence of six
guilty under Sec.. 304-A. The months' simple imprisonment
Bombay case is clearly 50 awarded to the appellant for the
15 distinguishable on the facts. In the offence under Sec.. 309 is
present case when the evidence appropriate.
shows that the appellant left her
9. In the result this appeal is
home saying that she would jump
dismissed.
into a well with her three children, it
20 cannot clearly be held that she was 55
not aware that her children were with
her. In my opinion, these two cases
are not of much assistance to the
appellant.
25 7. As regards the conviction of the
appellant for an attempt to commit
suicide, I think she has been rightly 60
convicted of that offence. When she
jumped into a well, she did so in a
30 conscious effort to take her own life.
8. The appellant has been sentenced
to transportation for life under Sec..
302, Penal Code. This is the only
65
sentence which could legally be
35 passed in this case. But having regard
to the facts and circumstances of the

95
 35 bring in such a verdict. The learned
Sessions Judge submitted the case
EXCEPTIONS TO Sec..300
under Sec..307 of the Code of
13. Criminal Procedure to the Bombay
K. M. Nanavati v. State of High Court after recording the
5 Maharashtra AIR 1962 SC 605 40 grounds for his opinion. The said
reference was heard by a division
K. SUBBA RAO, J. – bench of the said High Court
1. This appeal by special leave arises consisting of Shelat and Naik, JJ.
out of the judgment of the Bombay The two learned judges gave separate
High Court sentencing Nanavati, the 45 judgments, but agreed in holding that
10 appellant, to life imprisonment for the accused was guilty of the offence
the murder of Prem Bhagwandas of murder under Sec..302 of the
Ahuja, a businessman of Bombay. Indian Penal Code and sentenced him
to undergo rigorous imprisonment
2. This approval presents the 50 for life. Shelat, J., having held that
common place problem of an alleged there were mis-directions to the jury,
15 murder by an enraged husband of a reviewed the entire evidence and
paramour of his wife; but it aroused came to the conclusion that the
considerable interest in the public accused was clearly guilty of the
mind by reason of the publicity it 55 offence of murder; alternatively, he
received and the important expressed the view that the verdict of
20 constitutional point it had given rise the jury was perverse, unreasonable
to at the time of its admission. and, in any event, contrary to the
3. The appellant was charged under weight of evidence. Naik J., preferred
Sec..302 as well as under Sec.. 304, 60 to base his conclusion on the
Part I, of the Indian Penal Code and alternative ground, namely, that no
25 was tried by the Sessions Judge, reasonable body of persons could
Greater Bombay, with the aid of a have come to the conclusion arrived
special jury. The jury brought in a at by the jury. Both the learned
verdict of "not guilty" by 8: 1 under 65 Judges agreed that no case had been
both the Sec..s; but the Sessions made out to reduce the offence from
30 Judge did not agree with the verdict murder to culpable homicide not
of the jury, as in his view the amounting to murder. The present
majority verdict of the jury was such appeal has been preferred against the
that no reasonable body of men 70 said conviction and sentence.
could, having regard to the evidence,
96
 4. The case of the prosecution may Ahuja, Nanavati went to his ship,
be stated thus: The accused, at the took from the stores of the ship a
time of the alleged murder, was 40 semi-automatic revolver and six
second in command of the Indian cartridges on a false pretext, loaded
5 Naval Ship "Mysore". He married the same, went to the flat of Ahuja,
Sylvia in 1949 in the registry office entered his bed-room and shot him
at Portsmouth, England. They have dead. Thereafter, the accused
three children by the marriage, a boy 45 surrendered himself to the police. He
aged 9½ years, a girl aged 5½ years was put under arrest and in due
10 and another boy aged 3 years. Since course he was committed to the
the time of marriage, the couple were sessions for facing a charge under
living at different places having Sec.. 302 of the Indian Penal Code.
regard to the exigencies of service of
50 5. The defence version, as disclosed
Nanavati. Finally, they shifted to
in the statement made by the accused
15 Bombay. In the same city the
before the Sessions Court under
deceased Ahuja was doing business
Sec..342 of the Code of Criminal
in automobiles and was residing,
Procedure and his deposition in the
along with his sister, in a building
55 said Court, may be briefly stated:
called "Shrevas" till 1957 and
The accused was away with his ship
20 thereafter in another building called
from April 6, 1959, to April 18,
"Jivan Jyot" on Setalvad Road. In the
1959. Immediately after returning to
year 1956, Agniks, who were
Bombay, he and his wife went to
common friends of Nanavatis and
60 Ahmednagar for about three days in
Ahujas, introduced Ahuja and his
the company of his younger brother
25 sister to Nanavatis. Ahuja was
and his wife. Thereafter, they
unmarried and was about 34 years of
returned to Bombay and after a few
age at the time of his death.
days his brother and his wife left
Nanavati, as a Naval Officer, was
65 them. After they had left, the accused
frequently going away from Bombay
noticed that his wife was behaving
30 in his ship, leaving his wife and
strangely and was not responsive or
children in Bombay. Gradually,
affectionate to him. When
friendship developed between Ahuja
questioned, she used to evade the
and Sylvia, which culminated in
70 issue. At noon on April 27, 1959,
illicit intimacy between them. On
when they were sitting in the sitting-
35 April 27, 1959, Sylvia confessed to
room for the lunch to be served, the
Nanavati of her illicit intimacy with
accused put his arm round his wife
Ahuja. Enraged at the conduct of

97
 affectionately, when she seemed to The accused saw the deceased inside
go tense and unresponsive. After the bed-room, called him a filthy
lunch, when he questioned her about 40 swine and asked him whether he
her fidelity, she shook her head to would marry Sylvia and look after
5 indicate that she was unfaithful to the children. The deceased retorted,
him. He guessed that her paramour "Am I to marry every woman I sleep
was Ahuja. As she did not even with?" The accused became enraged,
indicate clearly whether Ahuja would 45 put the envelope containing the
marry her and look after the children, revolver on a cabinet nearby, and
10 he decided to settle the matter with threatened to thrash the deceased.
him. Sylvia pleaded with him not to The deceased made a sudden move to
go to Ahuja's house as he might grasp at the envelope, when the
shoot him. Thereafter, he drove his 50 accused whipped out his revolver and
wife, two of his children and a told him to get back. A struggle
15 neighbour's child in his car to a ensued between the two and during
cinema, dropped them there and that the struggle two shots went off
promised to come and pick them up accidentally and hit Ahuja resulting
at 6 p.m. when the show ended. He 55 in his death. After the shooting the
then drove to his ship, as he wanted accused went back to his car and
20 to get medicine for his sick dog; he drove it to the police station where he
represented to the authorities in the surrendered himself. This is broadly,
ship that he wanted to draw a omitting the details, the case of the
revolver and six rounds from the 60 defence.
stores of the ship as he was going to
6. It would be convenient to dispose
25 drive alone to Ahmednagar by night,
of at the outset the questions of law
though the real purpose was to shoot
raised in this case.
himself. On receiving the revolver
and six cartridges he put it inside a 7. Mr. G. S. Pathak, learned counsel
brown envelope. Then he drove his 65 for the accused raised before us the
30 car to Ahuja's office, and not finding following points:
him there, he drove to Ahuja's flat, (1) Under Sec..307 of the Code of
rang the doorbell, and when it was Criminal Procedure, the High Court
opened by a servant, walked to should decide whether a reference
Ahuja's bed-room, went into the bed- 70 made by a Sessions Judge was
35 room and shut the door behind him. competent only on a perusal of the
He also carried with him the order of reference made to it and it
envelope containing the revolver.

98
 had no jurisdiction to consider the do away with the deceased. He
evidence and come to a conclusion deliberately secured the revolver on a
whether the reference was competent false pretext from the ship, drove to
or not. the flat of Ahuja, entered his bed-
40 room unceremoniously with a loaded
5 (2) Under Sec..307(3) of the said
revolver in hand and in about a few
Code, the High Court had no power
seconds thereafter came out with the
to set aside the verdict of a jury on
revolver in his hand. The deceased
the ground that there were
was found dead in his bath-room
misdirections in the charge made by
45 with bullet injuries on his body. It is
10 the Sessions Judge.
not disputed that the bullets that
(3) There were no misdirections at all caused injuries to Ahuja emanated
in the charge made by the Sessions from the revolver that was in the
Judge; and indeed his charge was fair hand of the accused. After the
to the prosecution as well as to the 50 shooting, till his trial in the Sessions
15 accused. Court, he did not tell anybody that he
(4) The verdict of the jury was not shot the deceased by accident.
perverse and it was such that a Indeed, he confessed his guilt to the
reasonable body of persons could chowkidar Puran Singh and
arrive at it on the evidence placed 55 practically admitted the same to his
20 before them. college Samuel. His description of
the struggle in the bath-room is
(5) In any view, the accused shot at highly artificial and is devoid of all
the deceased under grave and sudden necessary particulars. The injuries
provocation, and therefore even if he 60 found on the body of the deceased
had committed an offence, it would are consistent with the intentional
25 not be murder but only culpable shooting and the main injuries are
homicide not amounting to murder. wholly inconsistent with accidental
8. From the consideration of the shooting when the victim and the
entire evidence, the following facts 65 assailant were in close grips. The
emerge: The deceased seduced the other circumstances brought out in
30 wife of the accused. She had the evidence also establish that there
confessed to him of her illicit could not have been any fight or
intimacy with the deceased. It was struggle between the accused and the
natural that the accused was enraged 70 deceased.
at the conduct of the deceased and
35 had, therefore, sufficient motive to
99
 9. We, therefore, unhesitatingly hold, of the person who gave the
agreeing with the High Court, that provocation or causes the death of
the prosecution has proved beyond any other person by mistake or
any reasonable doubt that the accident. Homicide is the killing of a
5 accused has intentionally shot the 40 human being by another. Under this
deceased and killed him. exception, culpable homicide is not
murder if the following conditions
10. In this view it is not necessary to
are complied with:
consider the question whether the
accused had discharged the burden (1) The deceased must have given
10 laid on him under Sec.. 80 of the 45 provocation to the accused.
Indian Penal Code, especially as
(2) The provocation must be grave.
learned counsel appearing for the
accused here and in the High Court (3) The provocation must be sudden.
did not rely upon the defence based (4) The offender, by reason of the
15 upon that Sec... said provocation, shall have been
11. That apart we agree with the 50 deprived of his power of self-control.
High Court that on the evidence (5) He should have killed the
adduced in this case, no reasonable deceased during the continuance of
body of persons could have come to the deprivation of the power of self-
20 the conclusion which the jury control.
reached in this case. For that reason
also the verdict of the jury cannot 55 (6) The offender must have caused
stand. the death of the person who gave the
provocation or that of any other
12. Even so it is contended by Mr. person by mistake or accident.
25 Pathak that the accused shot the
deceased while deprived of the 13. The first question raised is
power of self-control by sudden and 60 whether Ahuja gave provocation to
grave provocation and, therefore, the Nanavati within the meaning of the
offence would fall under Exception 1 exception and whether the
30 to Sec.. 300 of the Indian Penal provocation, if given by him, was
Code. The said Exception reads: grave and sudden.

Culpable homicide is not murder if 65 14. Learned Attorney-General argues

the offender, whilst deprived of the that though a confession of adultery
power of self-control by grave and by a wife may in certain
35 sudden provocation, causes the death circumstances be provocation by the

100
 paramour himself, under different 9], Viscount Simon, L.C., states the
circumstances it has to be considered scope of the doctrine of provocation
from the standpoint of the person thus: It is not all provocation that will
who conveys it rather than from the 40 reduce the crime of murder to
5 standpoint of the person who gives it. manslaughter. Provocation, to have
He further contends that even if the that result, must be such as
provocation was deemed to have temporarily deprives the person
been given by Ahuja, and though the provoked of the power of self-
said provocation might have been 45 control, as the result of which he
10 grave, it could not be sudden, for the commits the unlawful act which
provocation given by Ahuja was only causes death….The test to be applied
in the past. is that of the effect of the provocation
on a reasonable man, as was laid
15. On the other hand, Mr. Pathak
50 down by the Court of Criminal
contends that the act of Ahuja,
Appeal in Rex v. Lesbini[1914-3 KB
15 namely, the seduction of Sylvia, gave
1116] so that an unusually excitable
provocation though the fact of
or pugnacious individual is not
seduction was communicated to the
entitled to rely on provocation which
accused by Sylvia and that for the
55 would not have led an ordinary
ascertainment of the suddenness of
person to act as he did. In applying
20 the provocation it is not the mind of
the test, it is of particular importance
the person who provokes that matters
to (a) consider whether a sufficient
but that of the person provoked that
interval has elapsed since the
is decisive. It is not necessary to
60 provocation to allow a reasonable
express our opinion on the said
man time to cool, and (b) to take into
25 question, for we are satisfied that, for
account the instrument with which
other reasons, the case is not covered
the homicide was effected, for to
by Exception 1 to Sec.. 300 of the
retort, in the heat of passion induced
Indian Penal Code.
65 by provocation, by a simple blow, is
16. The question that the Court has to a very different thing from making
30 consider is whether a reasonable use of a deadly instrument like a
person placed in the same position as concealed dagger. In short, the mode
the accused was, would have reacted of resentment must bear a reasonable
to the confession of adultery by his 70 relationship to the provocation if the
wife in the manner in which the offence is to be reduced to
35 accused did. In Mancini v. Director manslaughter. Viscount Simon again
of Public Prosecutions [1942 AC 1, in 1946 AC 588 at p. 598 elaborates

101
 further on this theme. There, the applies. Goddard, C.J. in R. v.Duffy
appellant had entertained some [(1949)1 All ER 932] defines
suspicions of his wife's conduct with 40 provocation thus: Provocation is
regard to other men in the village. On some act, or series of acts, done by
5 a Saturday night there was a quarrel the dead man to the accused which
between them when she said, "Well, would cause in any reasonable
if it will ease your mind, I have been person, and actually causes in the
untrue to you", and she went on, "I 45 accused, a sudden and temporary loss
know I have done wrong, but I have of self-control, rendering the accused
10 no proof that you haven't-at Mrs. so subject to passion as to make him
X’s". With this the appellant lost or her for the moment not master of
temper and picked up the his mind….What matters is whether
hammerhead and struck her with the 50 this girl (the accused) had the time to
same on the side of the head. As he say: 'Whatever I have suffered,
15 did not like to see her lie there and whatever I have endured, I know that
suffer, he just put both hands round Thou shall not kill'. That is what
her neck until she stopped breathing. matters. Similarly, circumstances
The question arose in that case 55 which induce a desire for revenge, or
whether there was such provocation a sudden passion of anger, are not
20 as to reduce the offence of murder to enough. Indeed, circumstances which
manslaughter. Viscount Simon, after induce a desire for revenge are
referring to Mancini case [1942 AC 1 inconsistent with provocation, since
at p. 9] proceeded to state thus: The 60 the conscious formulation of a desire
whole doctrine relating to for revenge means that the person has
25 provocation depends on the fact that had time to think, to reflect, and that
it causes, or may cause, a sudden and would negative a sudden, temporary
temporary loss of self-control, loss of self-control which is of the
whereby malice, which is the 65 essence of provocation. Provocation
formation of an intention to kill or to being…as I have defined it, there are
30 inflict grievous bodily harm, is two things, in considering it, to
negatived. Consequently, where the which the law attaches great
provocation inspires an actual importance. The first of them is,
intention to kill (such as Holmes 70 whether there was what is sometimes
admitted in the present case), or to called time for cooling, that is, for
35 inflict grievous bodily harm, the passion to cool and for reason to
doctrine that provocation may reduce regain dominion over the
murder to manslaughter seldom mind….Secondly, in considering

102
 whether provocation has or has not (4) The fatal blow should be clearly
been made out, you must consider 35 traced to the influence of passion
the retaliation in provocation- that is arising from the provocation.
to say, whether the mode of
17. On the other hand, in India, the
5 resentment bears some proper and
first principle has never been
reasonable relationship to the sort of
followed. That principle has had its
provocation that has been given. A
40 origin in the English doctrine that
passage from the address of Baron
mere words and gestures would not
Parke to the jury in R. v. Thomas
be in point of law sufficient to reduce
10 [(1837) 7 C & P. 817] extracted in
murder to manslaughter. But the
Russell on Crime, 11th ed., Vol. I at
authors of the Indian Penal Code did
p. 593, may usefully be quoted: The
45 not accept the distinction. They
passage extracted above lay down the
observed: It is an indisputable fact,
following principles:
that gross insults by words or
15 (1) Except in circumstances of most gestures have as great a tendency to
extreme and exceptional character, a move many persons to violent
mere confession of adultery is not 50 passion as dangerous or painful
enough to reduce the offence of bodily injuries; nor does it appear to
murder to manslaughter. us that passion excited by insult is
entitled to less indulgence than
20 (2) The act of provocation which
passion excited by pain. On the
reduced the offence of murder to
55 contrary, the circumstance that a man
manslaughter must be such as to
resents an insult more than a wound
cause a sudden and temporary loss of
is anything but a proof that he is a
self-control; and it must be
man of peculiarly bad heart. Indian
25 distinguished from a provocation
courts have not maintained the
which inspires an actual intention to
60 distinction between words and acts in
kill.
the application of the doctrine of
(3) The act should have been done provocation in a given case. The
during the continuance of that state Indian law on the subject may be
30 of mind, that is, before there was considered from two aspects, namely,
time for passion to cool and for 65 (1) whether words or gestures
reason to regain dominion over the unaccompanied by acts can amount
mind. to provocation, and (2) what is the
effect of the time lag between the act
of provocation and the commission

103
 of the offence. In Empress v. learned judges held that the accused
Khogayi [ILR 2 Mad 122, 123], a had sufficient provocation to bring
division bench of the Madras High 40 the case within the first exception to
Court held, in the circumstances of Sec.. 300 of the Indian Penal Code.
5 that case, that abusive language used The learned Judges observed: If
would be a provocation sufficient to having witnessed the act of adultery,
deprive the accused of self-control. he connected this subsequent
The learned Judges observed: What 45 conduct, as he could not fail to
is required is that it should be of a connect it, with that act, it would be
10 character to deprive to offender of his conduct of a character highly
self-control. In determining whether exasperating to him, implying as it
it was so, it is admissible to take into must, that all concealment of their
account the condition of mind in 50 criminal relations and all regard for
which the offender was at the time of his feelings were abandoned and that
15 the provocation. In the present case they proposed continuing their
the abusive language used was of the course of misconduct in his house.
foulest kind and was addressed to a This, we think, amounted to
man already enraged by the conduct 55 provocation, grave enough and
of deceased's son. It will be seen in sudden enough to deprive him of his
20 this case that abusive language of the self-control, and reduced the offence
foulest kind was held to be sufficient from murder to culpable homicide
in the case of a man who was already not amounting to murder. The case
enraged by the conduct of the 60 illustrates that the state of mind of
deceased's son. The same learned the accused, having regard to the
25 Judge in a later decision in Boya earlier conduct of the deceased, may
Munigadu v. The Queen [ILR 3 Mad be taken into consideration in
33,. 34-35] upheld the plea of grave considering whether the subsequent
and sudden provocation in the 65 act would be a sufficient provocation
following circumstances: The to bring the case within the
30 accused saw the deceased when she exception. Another division bench of
had cohabitation with his bitter the Madras High Court in re
enemy; that night he had no meals; Murugian [AIR 1957 Mad 541] held
next morning he went to the ryots to 70 that, where the deceased not only
get his wages from them and at that committed adultery but later on
35 time he saw his wife eating food swore openly in the face of the
along with her paramour, he killed husband that she would persist in
the paramour with a bill-hook. The such adultery and also abused the

104
 husband for remonstrating against So too, where a woman was leading a
such conduct, the case was covered notoriously immoral life, and on the
by the first exception to Sec.. 300 of previous night mysteriously
the Indian Penal Code. The judgment 40 disappeared from the bedside of her
5 of the Andhra Pradesh High Court in husband and the husband protested
re C. Narayan [AIR 1958 A.P. 235], against her conduct she vulgarly
adopted the same reasoning in a case abused him, whereupon the husband
where the accused, a young man, lost his self-control, picked up a
who had a lurking suspicion of the 45 rough stick, which happened to be
10 conduct of his wife, who newly close by and struck her resulting in
joined him, was confronted with the her death, the Lahore High Court, in
confession of illicit intimacy with, Jan Muhammad v. Emperor [AIR
and consequent pregnancy by, 1929 Lah 861, 862-863] held that the
another strangled his wife to death, 50 case was governed by the said
15 and held that the case was covered by exception. The following
Exception 1 to Sec.. 300 of the observations of the court were relied
Indian Penal Code. These two upon in the present case: In the
decisions indicate that the mental present case my view is that, in
state created by an earlier act may be 55 judging the conduct of the accused,
20 taken into consideration in one must not confine himself to the
ascertaining whether a subsequent act actual moment when the blow, which
was sufficient to make the assailant ultimately proved to be fatal, was
to lose his self-control. struck, that is to say, one must not
60 take into consideration only the event
18. Where the deceased led an
which took place immediately before
25 immoral life and her husband, the
the fatal blow was struck. We must
accused, upbraided her and the
take into consideration the previous
deceased instead of being repentant
conduct of the woman.... As stated
said that she would again do such
65 above, the whole unfortunate affair
acts, and the accused, being enraged,
should be looked at as one prolonged
30 struck her and, when she struggled
agony on the part of the husband
and beat him, killed her, the Court
which must have been preying upon
held that the immediate provocation
his mind and led to the assault upon
coming on top of all that had gone
70 the woman, resulting in her death. A
before was sufficient to bring the
division bench of the Allahabad High
35 case within the first exception to
Court in Emperor v. Balku [AIR 1938
Sec..300 of the Indian Penal Code.
All 532, 533-534] invoked the

105
 exception in a case where the and there was no more any contact
accused and the deceased, who was between them. He had lulled himself
his wife's sister's husband, were 40 into a false security. This belief was
sleeping on the same cot, and in the shattered when he found the
5 night the accused saw the deceased deceased at his hut when he was
getting up from the cot and going to absent. This could certainly give him
another room and having sexual a mental jolt and as this knowledge
intercourse with his (accused's) wife, 45 will come all of a sudden it should be
and the accused allowed the deceased deemed to have given him a grave
10 to return to the cot, but after the and sudden provocation. The fact that
deceased fell asleep, he stabbed him he had suspected this illicit intimacy
to death. The learned Judges held: on an earlier occasion also will not
When Budhu (the deceased) came 50 alter the nature of the provocation
into intimate contact with the and make it any less sudden. All the
15 accused by lying beside him on the said four decisions dealt with a case
charpai this must have worked of a husband killing his wife when
further on the mind of the accused his peace of mind had already been
and he must have reflected that 'this 55 disturbed by an earlier discovery of
man now lying beside me had been the wife's infidelity and the
20 dishonouring me a few minutes ago'. subsequent act of her operated as a
Under these circumstances we think grave and sudden provocation on his
that the provocation would be both disturbed mind.
grave and sudden. The Allahabad
60 19. Is there any standard of a
High Court in a recent decision, viz.,
reasonable man for the application of
25 Babu Lal v. State [AIR 1960 All. 233,
the doctrine of "grave and sudden"
226] applied the exception to a case
provocation? No abstract standard of
where the husband who saw his wife
reasonableness can be laid down.
in a compromising position with the
65 What a reasonable man will do in
deceased killed the latter
certain circumstances depends upon
30 subsequently when the deceased
the customs, manners, way of life,
came, in his absence, to his house in
traditional values etc.; in short, the
another village to which he had
cultural, social and emotional
moved. The learned Judges observed:
70 background of the society to which
The appellant when he came to reside
an accused belongs. In our vast
35 in the Government House Orchard
country there are social groups
felt that he had removed his wife
ranging from the lowest to the
from the influence of the deceased

106
 highest state of civilization. It is act caused grave and sudden
neither possible nor desirable to lay provocation for committing the
down any standard with precision: it offence
is for the court to decide in each case,
(4) The fatal blow should be clearly
5 having regard to the relevant
40 traced to the influence of passion
circumstances. It is not necessary in
arising from that provocation and not
this case to ascertain whether a
after passion had cooled down by
reasonable man placed in the position
lapse of time, or otherwise giving
of the accused would have lost his
room and scope for premeditation
10 self-control momentarily or even
45 and calculation.
temporarily when his wife confessed
to him of her illicit intimacy with 21. Bearing these principles in mind,
another, for we are satisfied on the let us look at the facts of this case.
evidence that the accused regained When Sylvia confessed to her
15 his self-control and killed Ahuja husband that she had illicit intimacy
deliberately. 50 with Ahuja, the latter was not
present. We will assume that he had
20. The Indian law, relevant to the
momentarily lost his self-control.
present enquiry, may be stated thus:
But, if his version is true-for the
(1) The test of “grave and sudden” purpose of this argument we shall
20 provocation is whether a reasonable 55 accept that what he has said is true-it
man, belonging to the same class of shows that he was only thinking of
society as the accused, placed in the the future of his wife and children
situation in which the accused was and also of asking for an explanation
placed would be so provoked as to from Ahuja for his conduct. This
25 lose his self-control. 60 attitude of the accused clearly
indicates that he had not only
(2) In India, words and gestures may
regained his self-control, but, on the
also, under certain circumstances,
other hand, was planning for the
cause grave and sudden provocation
future. Then he drove his wife and
to an accused so as to bring his act
65 children to a cinema, left them there,
30 within the first Exception to Sec..300
went to his ship, took a revolver on a
of the Indian Penal Code.
false pretext, loaded it with six
(3) The mental background created rounds, did some official business
by the previous act of the victim may there, and drove his car to the office
be taken into consideration in 70 of Ahuja and then to his flat, went
35 ascertaining whether the subsequent straight to the bed-room of Ahuja

107
 and shot him dead. Between 1.30 Article
p.m., when he left his house, and
Extracts from Defences for
4.20 p.m.,when the murder took
Battered Women who Kill
place, three hours had elapsed, and
5 therefore there was sufficient time Katherine O’Donovan
for him to regain his self-control, 40 1. Recent articles on legal theory
even if he had not regained it earlier. suggest that the concepts 'standpoint'
On the other hand, his conduct and 'perspective' may be useful in
clearly shows that the murder was a probing certain issues.
10 deliberate and calculated one. Even if
any conversation took place between 2. The idea is to recognize a
the accused and the deceased in the 45 pluralism of views, values, interests,
manner described by the accused- and experiences which affect what
though we do not believe that-it does we know about law. … (In this
15 not affect the question, for the paper,) it is argued that the
accused entered the bed-room of the perspectives and experiences of
deceased to shoot him. The mere fact 50 many groups have been ignored in
that before the shooting the accused the past, and that these must be
abused the deceased and the abuse considered in law making and
20 provoked an equally abusive reply application….
could not conceivably be a 3. This paper represents an effort to
provocation for the murder. We, 55 apply the experiential approach to an
therefore, hold that the facts of the area of law where it seems
case do not attract the provisions of particularly appropriate: the case of
25 Exception 1 to Sec..300 of the Indian the victim of aggression who kills the
Penal Code. assailant. If we are 'to shape the
22. In the result, the conviction of the 60 definitions to make law fit women's
accused under Sec..302 of the Indian experience', the problem of the
Penal Code and sentence of battered woman who kills provides a
30 imprisonment for life passed on him site of investigation. For it is often
by the High Court are correct and alleged that the current form of law
there are absolutely no grounds for 65 ignores women's experiences and
interference. The appeal stands that the defences of self-defence and
dismissed. provocation which justify or partially
excuse homicide are limited to male
35
definitions and behavioral practices.
70 What is being suggested is that long
108
 experience of being a victim of 5. The cultural argument can be
violence may lead a woman to kill, taken further, not only in relation to
only to find that the law condemns homicide but also in relation to
her. … 40 domestic violence. Much of the
modern literature argues that the
5 I.
context of killing and of the law that
4. THE BACKGROUND It is surrounds it includes gender factors,
common, in papers such as this, to whether the killing is done by a man
start with the statistics on homicide. 45 or a woman. Violence and fear have
Whether the evidence is taken from a relationship to gender. When these
10 England and Wales, or the United matters come to court other cultural
States of America, the following factors enter in through the law.
conclusions emerge: about a quarter Definitions of defence are informed
of all homicides are domestic; 50 by the past history of homicide and
women are more likely to be the its character as primarily a male act.
15 victims of homicide than the The gender aspects are rarely
perpetrators; when female homicide articulated.
victims are grouped, domestic killing
6. Laws are made by judges and
forms the largest category, that is, the
55 legislators who are mainly drawn
killing of wives or cohabitants. The
from one gender and whose
20 purpose of looking to statistical
experience is limited. When women
evidence is to paint the background
do kill after experiencing violence
to the picture. What we see are
they enter an alien culture which
patterns of behaviour which colour
60 lacks an understanding of the context
conceptions of violence and fear.
of their act. They encounter legal
25 Men are the majority of killers and
categories that do not accommodate
the killed; killing tends to be a male
their behavior and are tried and
act. Gender role is a relevant aspect
sentenced by courts that ignore or
of investigations of killing. Women
65 misunderstand their actions and
rarely kill by comparison with men.
motivations. …
30 But women do fear male violence.
This leads Taylor to draw the 8. Double standards are a recurrent
conclusion: 'Female homicide is so theme in writing on traditional
different from male homicide that defences to homicide by women. It is
women and men may be said to live 70 important to establish what this
35 in two different cultures, each with criticism is. In the case of petty
its own "subculture of violence".' treason as a specific crime for

109
 women who killed their husbands, interpretations of 'reason' are limited
what is being criticized is that the to a male way of seeing. …
same crime was treated rather more
II.
severely when committed by a
5 woman rather than by a man. So the 40 10. PROVOCATION Where a self-
argument is against differential defense plea does not succeed, the
standards according to gender. The accused remains entitled to raise the
appeal is to a concept of equality defence of provocation. If successful
under the law. But does it propose this reduces the offence charged from
10 that women fall under the male 45 murder to manslaughter. In Bullard
standards? This is of importance later was stated: 'Every man on trial for
in the paper when we consider the murder has the right to have the issue
various options for change of of manslaughter left to the jury if
existing rules. There is a distinction there is any evidence upon which
15 between a double standard, a male- 50 such a verdict can be given.'
centered standard, and an all- 11. The difficulty is that in battering
encompassing standard. … cases the cumulative violence over a
9. The general requirement of long period may not be denoted
reasonableness may also provide a provocation by the trial judge, who
20 stumbling block. Articles on the 55 decides whether or not this issue
notion of the 'reasonable man' goes to the jury. The very nature of
propose that it has been developed in prolonged violence, the apparent
a male-oriented legal culture. It is initial tolerance by the victim, and
common in the literature to report her failure to respond violently
25 'not a single common-law reference 60 immediately is contrary to the 'heat
to the "reasonable woman"' and it has of the moment' quality which is
been implied that this is a required by the current definition of
contradiction in terms. More provocation. Wasik has identified
recently, since the point about cumulative provocation as involving
30 equality under the law has been 65 'a course of cruel or violent conduct
taken, the courts have attempted to by the deceased often in a violent
say that the term 'reasonable man' is setting, lasting over a substantial
inclusive of women. This is so in the period of time, which culminates in
provocation cases considered below. the victim of that conduct...
35 However the old gibe may contain a 70 intentionally killing the tormentor'.
cultural truth, in the sense that This appears an apt description of the

110
 context of a killing by a battered induce a desire for revenge are
wife. inconsistent with provocation, since
the conscious formulation of a desire
12. The decision of Duffy, however,
40 for revenge means that a person had
stands in the way of legal acceptance
time to think, to select and that
5 of such a killing as a response to
would negative a sudden, temporary
provocation. The facts were that a
loss of self-control which is of the
woman was convicted of the murder
essence in provocation.
of her husband. It was established
that she killed her husband while he 45 13. The Duffy approach to
10 was in bed after a violent quarrel and provocation has been confirmed on
that there was a previous history of various occasions since then. In 1982
violence by him. Her appeal was in Ibrams, the Court of Appeal held
dismissed and the legal description of that the judge was right to withdraw
provocation given to the jury in the 50 the issue of provocation from the
15 judge's direction at the trial was jury where the last act of provocation
approved. It is this direction which took place on a Sunday and the
appears to prevent the placing of the killing was the following Friday. It
evidence before a jury in subsequent was denoted a case of revenge, rather
cases. Devlin J. defined provocation 55 than a sudden and temporary loss of
20 as: Some act, or series of acts, done self-control. In the context of killing
by the dead man to the accused, by a battered wife, the likelihood is
which would cause in any reasonable that her action will be seen as
person and actually causes in the revenge rather than justified or
accused, a sudden and temporary 60 excused despite the modification of
25 loss of self-control, rendering the the common law by the Homicide
accused subject to passion as to Act 1957, Sec.. 3. The Act provides
make him or her for the moment not that where there is evidence that the
master of his mind. The judge then defendant was provoked 'to lose his
went on to say that 'the farther 65 self-control' the determination of
30 removed an incident is from the reasonableness is left to the jury.
crime, the less it counts'. This means,
14. This does not prevent the judge
in the context of the killing of a
from withholding the question from
batterer, that to wait until the
the jury on the grounds that such
deceased is in bed or asleep is
70 evidence is insufficient. Double
35 denoted ‘revenge’. The judge said
standards re-enter as an argument in
further: Indeed, circumstances which
relation to provocation. For example,

111
 in Davies a husband who had killing' is said to do, or whether it is a
previously committed acts of mitigating factor. In Duffy the judge
violence against his wife, and who said that 'the sympathy of everyone
then shot her, did not have his 40 would be with the accused and
5 actions qualified as 'revenge' by the against the dead man'. But the issue
court. His plea of provocation was of provocation was withheld from the
put to the jury, who nevertheless jury, so they were prevented from
convicted him of homicide. It is true showing their sympathy through a
that the decision to allow a plea of 45 verdict of manslaughter. Yet in other
10 provocation was criticized by a later cases, for example, those of a wife's
court. But the denotation of the wife's infidelities, the issue is put to the
behaviour as provocative, rather than jury, who may then reflect public
the husband's as vengeful is opinion. A revenge killing is typified
revealing. Furthermore, there is a 50 as one in which the killer waits. It is
15 clear inconsistency with the decision presented as the opposite of an
in Duffy. This suggests one standard immediate and temporary loss of
for women (as in Duffy) and another self-control. Extensive judicial
for men (as in Davies). analysis of either is lacking and clues
55 as to the conceptual content have to
14. The law on provocation has been
be drawn from trial judges' directions
20 criticized as taking a 'wholly
of juries. What seems to be
unrealistically restrictive view' of
overlooked by defence lawyers and
provocation. The restrictions relate
judges is the notion of the 'slow
not only to the male model of violent
60 burn', that is, the gradual build-up in
response to behavior qualified as
the powerless of feelings of anger
25 provocative, but also to the limitation
and helplessness which eventually
of the notion of provocation to
erupt, but not necessarily at a
certain actions and incidents. The
moment suitable for the definition of
refusal by juries to convict for
65 provocation.
homicide in cases of cumulative
30 provocation is evidence of public 16. Whether the slow build-up of
opinion differing from the law's rage should be characterized as
definition. … revenge, as it now is, or as a response
to provocation remains an issue with
15. At present members of the
70 which this paper is concerned. The
judiciary demonstrate ambivalence as
defence of provocation recognizes
35 to whether cumulative provocation
the killing which occurred as
makes a killing worse, as a 'revenge

112
 wrongful behavior. Were it not for ethnicity, and sex from the adult,
the excuse the defendant would be white, male traditional model. Lord
held accountable. Excused behavior Diplock made clear his view that
is personal to the actor and involves 40 provocation is a relative concept -
5 an inquiry into the circumstances and relative to characteristics of the
character of the defendant. There is defendant and to social standards of
an acknowledgement by the the day. So he said: When Hale was
defendant that her conduct was writing in the seventeenth century,
wrong. She asks to be excused. But 45 pulling a man's nose was thought to
10 there is also a partial element of justify retaliation with sword; when
justification in provocation which Mancini v. D.P.P. (1942) was
relates to the conduct of the deceased decided by this House, a blow with a
victim - 'did the victim ask for it?'. fist would not justify retaliation with
This conduct may be that of a restless 50 a deadly weapon. But now that the
15 baby who cries continually. law has been changed so as to permit
of words being treated as provocation
17. The barrier posed by the
even though unaccompanied by any
definition of provocation in Duffy as
other acts, the gravity of provocation
‘a sudden and temporary loss of self-
55 may well depend upon the particular
control’ and the opposition thereto of
characteristics of circumstance of the
20 'revenge killing' means that the issue
person to whom a taunt or result is
of provocation will not be put to the
addressed. Thus social standards of
jury in most cases of the killing of a
the time, and particular
batterer where delay occurs. Yet,
60 characteristics or circumstances are
should the jury become seized of the
relevant when considering whether
25 issue, there is in the case-law
actions or words are provocative or
language which permits a taking into
retaliation reasonable. This has the
account of the battered wife context.
effect of reducing the concept from
An example is the Camplin case. In
65 absolute to relative. Age at the time
Camplin the accused was a fifteen-
of killing is relevant for it ‘is a
30 year old youth who had killed a
characteristic which may have its
middle-aged man. His defence was
effects on temperament as well as
that the deceased had first buggered
physique’. Of course this does not
him and then laughed at him. In the
70 answer the problem that the response
House of Lords an attempt was made
to provocation must be 'in the heat of
35 to broaden concepts of provocation
the moment', but it does suggest a
to encompass differences of age,
possible line of development.

113
 18. At present the definition of provocation, contains three elements:
provocation is still limited by the definition, from a particular
Duffy decision. So although there perspective, containing assumptions
may be relativity on the question of 40 about the other.
5 reasonableness of response which is
20. Even when the double standard is
open to the jury, this is a question
abandoned 'the other' may be
which does not go to the jury if the
expected to conform to standard
court decides that what happened
based on a particular perspective. In
does not fit the definition of
45 relation to provocation Taylor's
10 provocation. In the Ibrams case
comment is pithy: Although the
which was subsequent to Camplin
defence of provocation upon the
the jury was prevented from
discovery of adultery now applies to
considering the defence of
women as well as to men, it is a
provocation because a delay was
50 shallow concession to equality that
15 involved. To some extent
bears little legitimacy or meaning.
provocation as a concept remains
Cases and social studies show that
within an overly-narrow framework
women rarely react to their husband's
of analysis.
infidelity with violence.... 21. Female
19. It is tempting to conclude that the 55 homicide defendants may be
20 judiciary has been willing to broaden exceptional because they are rare, but
the standard of reasonableness, but they may not be exceptional women,
has retained a male-oriented view of they may be ordinary women pushed
provocative behavior. Taylor points to extremes. Yet the law has never
out that while the law sympathized 60 incorporated these 'ordinary' women
25 with the jealous rage of men, it into its standards for assessing the
assumed that wives did not degree of criminality in homicide, as
experience similar rage. In 1946, 274 it has done with 'ordinary' men.
years after a court first announced the
22. What is being argued here is that
defence of provocation, an English
65 allowing women to claim
30 court finally stated that wives who
provocation in cases of male
killed their husbands or their
infidelity is a small concession.
husbands' lovers could also avail
Considering violence and fear would
themselves of the defence. The
have more meaning. It might seem
investigation of double standards can
70 that the broadened standard of
35 now be taken further. The double
reasonableness put forward in
standard, whether on adultery or
Camplin is a progressive standard,

114
 covering gender, ethnicity, and age. the test is for a person opposed to the
But can it deal with the question of feminine gender. But perhaps a better
what is provocative to a particular analysis is that provided by Allen:
temperament? Without an 40 Legal discourse constructs for itself a
5 experiential element which takes standard human subject, endowed
account of participant standpoint, the with consciousness, reason,
‘other’ will remain defined from an foresight, internationality, an
ethno-or phallocentric perspective. awareness of right and wrong and
The standpoint of the accused must 45 knowledge of the law of the land.
10 be permitted to emerge. These are the reasonable attributes
Temperament is both relevant and which provide the grounds for legal
relative according to Lord Diplock. culpability. Pleas of self-defence or
This is an important point and it may provocation represent an
again be illustrated by language from 50 acknowledgement by the law that,
15 Lord Morris who said that the racial under certain circumstances,
and ethnic origins of the accused are necessity or loss of self-control may
relevant in considering whether overcome that intentionality and
things said are provocative, and the consciousness which the law elevates
reaction to such words. ‘The question 55 as standard. 'The "reasonable man"
20 would be whether the accused, if he test allows this “frailty of the
was provoked, only reacted as even normal” to be acknowledged and
any reasonable man in his situation taken into account.' 24. Cases of
would or might have reacted.’ This battered women who kill tend to
language is suggestive of a standard 60 follow a pattern. The woman waits
25 of reasonableness which takes until the batterer is quiet, in bed or
account of certain characteristics, but asleep. Then she attacks. For
which is not entirely subjective. In example, in Ahluwalia, having been
other words, it is an attempt to find a beaten and burned, the defendant
standard which is neither exclusive to 65 poured petrol over her husband when
30 the adult, white, male, nor is he was asleep and set him alight. The
subjective to be accused. This is to be delay led to a conviction for murder.
welcomed as recognition of Yet similar cases where diminished
pluralism. … responsibility is pleaded may lead to
70 two years' probation. Delay is viewed
23. Some academic commentators on
as leading either to revenge or to
35 the reasonable man test do suggest
calming down. In either case legal
that, in its origins and application,
discourse constructs a person who is

115
 rational and calculating with legal substantially impaired his
responsibility. The idea of responsibility for his acts or
cumulative rage, the slow burn, has omissions in doing or being a party
not been accepted in English law, 40 to the killing. Pleas of diminished
5 although it has some purchase in responsibility have been successful
California. Perhaps cumulative rage in cases of cumulative violence.
might be posited as a response to
26. In Robinson a woman who was
cumulative violence. Taking account
attacked and ‘put into hospital’ by
of the characteristics of the provoked
45 her husband on several occasions
10 person, such as gender or age, is
was said by the prosecution to have
limited by case-law to situations
‘been subjected to a degree of
where there was a 'real' connection
provocation which goes well beyond
between the nature of the
that which might be thought
provocation and the characteristic in
50 extreme’. She was put on probation
15 question. Whether the courts might
for two years after pleading
be willing to see cumulative fear and
diminished responsibility. The facts
rage as a gender characteristic is
were that she attacked him with a
doubtful. Yet it is fear which leads to
hammer and strangled him. The
a delay in responding immediately to
55 sympathy of the prosecution and the
20 violence. …
court for the defendant are clear from
III. the report. So why not advise those
who kill following cumulative
DIMINISHED RESPONSIBILITY
violence to plead diminished
25. English law permits plea of
60 responsibility?
diminished responsibility to be
25 entered in order to reduce a charge of 27. One answer is that such a plea
murder to manslaughter. Under the avoids placing the issue of
Homicide Act 1957, Sec..2, such justification before the court. If the
pleas, if successful, are taken as an accused wishes to vindicate her
acknowledgement of wrongdoing, 65 conduct, a plea of diminished
30 but also as an excuse. Diminished responsibility alienates her from a
responsibility is defined as: Suffering claim to have acted justly. Instead of
from such abnormality of mind proposing herself as a legal subject
(whether arising from a condition of responsible for her actions, she
arrested or retarded development of 70 denies this and proposes abnormality
35 mind or any inherent causes or of mind. This prevents attention
induced by disease or injury) as being given to cumulative violence

116
 and appropriate responses. Instead, that experience are women who have
the focus is on her mental state at the been charged and convicted of
time of what is acknowledged as homicide. Such accounts do exist and
crime. Her personality, emerge from case transcripts and
5 characteristics, and problems are on 40 other sources. In the course of
trial. researching this paper the writer
interviewed one woman who had
28. A second answer is that a plea of
written to a national newspaper on
diminished responsibility enables the
the subject of domestic violence. She
labelling of the woman who makes it
45 is serving a term of imprisonment for
10 as crazy or incapable, or both. There
life for homicide. The point of her
is a contradiction here if the
letter was that she had received little
defendant wants to appear as active
assistance from the police or other
in dealing with the abuse she has
agencies despite having drawn
suffered, and yet, as abnormal. If
50 attention to the violence she suffered.
15 abnormality is over-emphasized, she
She had contacted a local authority
may find that the outcome of the trial
social worker, her family doctor, her
is not probation, but incarceration in
church, Alcoholics Anonymous, she
an institution for persons designated
was hospitalized because of her
'mental'.
55 injuries, the police were involved,
20 29. A third answer is that, although a and a solicitor advised her that we
diminished responsibility plea had no remedy in law. Much of the
enables an individual woman to writing on wife abuse documents a
excuse her action in an acceptable similar scenario.
legal form, it does nothing for
60 31. It seems that the community
25 battered women as a group. It is, of
often regards the victim as the source
course, of the nature of criminal
of the problem. However, the police
charges that they are brought against
attitude may change as a result of
individuals. However, unless a
new guidelines under which support
challenge is presented to the current
65 and sympathy are to be offered to
30 law on self-defence and provocation,
battered women. A question which is
change cannot occur. …
often asked about such cases of abuse
30. This paper started as an effort to is why the woman did not leave. This
apply an experiential approach to the is understandable for, if a link
case of the battered woman who kills 70 between prior abuse and
35 the abuser. Those best able to express consequential killing is to be

117
 sustained, an explanation may be whether the charge is manslaughter
sought. In other words, if killing is to or murder; whether counsel develops
be presented as a form of justified a clever defence strategy; whether
self-help it may be asked why other 40 the jury is sympathetic. But the
5 forms of self-help were not used. To presentation and acceptance of the
some extent this question is a woman's action as reasonable is also
reformulation of the old requirement necessary. Broadening concepts of
of retreat, and the answers given reasonableness to take account of an
earlier could be re-applied. Leaving 45 abused woman's way of seeing her
10 without one's children may seem a predicament is a possible threat to
frightening prospect. But women's law's claim to objectivity. On the
own accounts reveal emotional ties to other hand, as this paper documents,
the abuser which increase the law's claims to universality are under
difficulty of leaving. If the legal 50 indictment because of a failure to
15 process is to come to terms with this incorporate the experiences of abused
it will have to accept that for many women. Although the law may not
women connection to others is regard it as reasonable to wait until
important. In other words, women's the abuser is asleep to attack him,
ways of looking at relationships will 55 from the victim's standpoint it may
20 have to be valued equally with those be so. Although staying with an
of men. …. There is a perceived need abuser because of emotional ties may
for a law to have a universal and be regarded as irrational by some,
objective standard, such as others may understand how this can
reasonableness, in order to preserve 60 occur. If law reflects one's definitions
25 legitimacy. But notions of objectivity and viewpoint one is fortunate. If law
and universal applicability are does not do so, one is unlucky. But it
increasingly doubted in post-modern is also an indication of power or
society. powerlessness.
32. What this paper proposes is that 65
30 reasonableness, as presently
interpreted, is not always an ideal
standard. Whether such a standard is
attainable remains a matter of debate.
Not only do sentences received by
35 women who kill abusers vary
according to the following factors: 70

118
 14. 35 resident of Mohalla Rampura. Four
or five days prior to the occurrence
Allahabad High Court
Mohan had given the Farshi of his
Yusuf v. State of U.P. Hukka to Nasib Ullah for repairs. In
1973 CriLJ 1220 the morning of 8th May 1968 Mohan
40 went to Nasib Ullah to get his Farshi,
5 Bench: M Shukla, K Seth if it had been repaired. At that time
K.N. Seth, J. the other three accused were also
present there. They were asking
1. Yusuf has appealed against the Nasib Ullah to restore Yusuf's son to
order of the learned Temporary Civil 45 him who was missing for the
and Sessions Judge. Bulandshahr, preceding three or four days. Yusuf
10 convicting and sentencing him to suspected that Nasib Ullah was
imprisonment for life under Section responsible for the disappearance of
302, I. P. C, and to nine months' his son. Nasib Ullah declined to
rigorous imprisonment under Section 50 disclose the whereabouts of the
323/34, IPC Kalua has preferred' a missing child unless Yusuf was
15 separate appeal against his conviction prepared to restore to Nasib Ullah the
and sentence of nine months' latter's son. Yusuf was said to be a
rigorous imprisonment under Section pick pocket and one of the sons of
323. IPC Nasib Ullah and Babu. two 55 Nasib Ullah was alleged to be
other co-accused, were also awarded ardently attached to Yusuf accused.
20 a sentence of nine months' rigorous In the midst of the wrangle going on
imprisonment, the former under between Nasib Ullah on the one hand
Section 323/34, IPC and the latter and the other three accused on the
under Section 323, IPC but they 60 other, Nasib Ullah took Mohan aside
appear to have submitted to the and demanded a sum of Rs. 200/-
25 order. from him so that he could get rid of
2. Nasib Ullah and Babu accused the three accused by paying off that
were brothers, Yusuf and Kalua were amount to them. Mohan expressed
cousins. They all lived near an open 65 his inability to advance the amount
piece of land known as Penth Ka which annoyed Nasib Ullah. He
30 Maidan within the town of immediately shouted that the lost
Sikandarabad Nasib Ullah carried on child of Yusuf was with Mohan and
the vocation of welding and plating he should be made to restore the
and in the course of his business he 70 child. At that time Akhtar and Dasi
got acquainted with Mohan, a happened to arrive there. Mohan

119
 continued to assert that he had whereabouts. Realising that the
nothing to do with the lost child and parties were in no mood to come to
was wholly ignorant as to his any settlement, Akhtar left the place
whereabouts. Akhtar tried to 40 at about 11-30 P.M. The accused,
5 intervene in the dispute, but ,as he however still kept on pressing Mohan
was in a hurry to proceed to to restore the missing child, but
Bulandshahr, he asked the parties to Mohan maintained his earlier stand
wait till the evening when he would that he was not aware of the
return from Bulandshahr and try to 45 whereabouts of the child.
10 resolve their differences. At that
4. At about mid-night Kunwar Pal.
stage Mohan left the place.
another son of Mohan arrived at the
3. At about 8.00 or 8.30 P. M. Maidan accompanied by Ram Lai,
accused Yusuf and Kalua went to Shanker. Pema end two others.
Mohan and persuaded him to 50 Kunwar Pal asked his father to return
15 accompany them to Nasib Ullah's home as it was already too late.
place. Puran. one of the sons of Mohan and Puran started from the
Mohan, also accompanied his father. .place towards their house. They had
Akhtar was also summoned there and hardly covered a few paces when
once again the earlier accusation and 55 Nasib Ullah shouted to his
20 counter accusation started. Mohan companions that they were sparing
insisted that he had nothing to do the man who was withholding the
with the disappearance of the son of missing boy and were mal-treating
the Yusuf. Nasib Ullah suggested to him for no fault of his. Kalua and
the other accused that Mohan was 60 Babul accused thereupon assaulted
25 probably afraid of some legal action Mohan with sticks. Puran rushed
against him by the police and that he forward to save his father
might be persuaded to restore the lost whereupon, on the exhortation of the
child in case some assurance in other three accused. Yusuf whipped
writing was given to him that no 65 out a knife from his pocket and gave
30 action would be taken against him. A a blow to Puran in his abdominal
writing to that effect was drawn up region, Puran fell down and died
which was signed by Yusuf and instantaneously. Yusuf. Kalua- and
handed over to Mohan. Even after Babu managed to escape, but Nasib
receiving the writing Mohan 70 Ullah was apprehended by Mohan
35 persisted in maintaining that he knew and his companions. He was taken to
nothing about the lost child or his the police station. Sikanderabad

120
 where Mohan lodged a report of the incised wound at the lower lobe. The
incident at 1.00 A, M. the same pancreas and spleen were also
night. The writing, which Yusuf had congested and so were the kidneys.
given to Mohan, was also handed In the opinion of the Doctor death
5 over to the police. 40 was caused by haemorrhage and
shock due to the aforesaid injuries.
5. The Investigating Officer,
accompanied by Sub-Inspector Mool 7. Mohan was medically examined
Chand, immediately left for the scene by Dr. B. S. Gupta (P. W. 4).
of crime and found the dead body of Medical Officer Incharge.
10 Puran lying there. After interrogating 45 Sikanderabad. Dispensary on 9th
Mohan (P. W. 1) Ram Lai (P. W. 2). May 1968 at 10-35 A. M.T who
Shanker (P. W. 7). Pema (P. W. 9) found three contusions and five
and others on the spot, he completed abrasions on his person. All the
the other necessary formalities. The injuries were simple having been
15 investigation was subsequently taken 50 caused by some blunt weapon. The
over by Sub-Inspector Mool Chand. duration was given to be one third of
a day.
6. The post mortem examination on
the dead body of Puran was 8. The accused denied the
conducted by Dr. N. R. Manjogy on prosecution case and pleaded that
20 9th May 1968 at 5.00 P. M. which 55 they had been falsely implicated.
revealed the following ante mortem Babu and Kalua expressed their
injuries: ignorance regarding the allegation
that Yusuf's son was missing for
1. Incised wound 2" X 1/2" X
some time prior to the occurrence.
abdominal cavity on the right
60 Nasib Ullah and Yusuf, however,
25 umbilicus at 11 O'clock position,
admitted the fact that Yusuf's son
horizontal from outside to inside.
was missing for some time and thai
2. Abrasion A" X 4" on the middle of Nasib Ullah was suspected to be the
the nose front side. man behind the mischief and was
On internal examination, the 65 chastised by Yusuf and others. It was
30 peritoneum was found punctured denied by the accused that they had
below injury No. 1 and the confronted Mohan and demanded the
abdominal cavity contained blood. missing boy from him. They further
The peritoneum was protruding out denied their involvement in the
of the abdominal walls. Oesophagus 70 incident in which Mohan had
35 was congested. The liver had an received injuries and Puran was done

121
 to death. It was suggested during the to Nasib Ullah's place in the evening
course of cross-examination of the when Akhtar (P. W, 8) was also
prosecution witnesses that Mohan present, but his mediation did not
and Puran had received injuries at the 40 prove fruitful. Nasib Ullah suggested
5 Maidan in a melee and. it being to Yusuf that he should assure
utterly dark in the place at that hour, Mohan in writing that no action
the real assailants could not be would be taken against him and
identified. Budh Deo (D. W. 2), an Yusuf got a writing to that effect
employee in the Municipal Board of 45 drawn up and after signing handed it
10 Sikanderabad. was examined to over to Mohan. This document (Ex.
prove that street lights had not been Ka-3) contained a recital to the effect
lighted on the night of occurrence that the missing child had already
before 2.00 A. M. Nasib Ullah been restored to Yusuf and that no
examined Dr. R. S. Tyagi (D. W. 1). 50 action would be taken against Mohan
15 the then Medical Officer. District and Nasib Ullah. This document (Ex.
Jail, Bulandshahr. to prove the Ka-3) indicates that Mohan and
injuries that he had on his person Nasib Ullah both were considered
when he was admitted into the jail on responsible for the disappearance of
the morning of 10th May 1968. 55 the child. In view of this document,
coupled with the conduct of Mohan
20 9. Mohan (P. W. 1) narrated the
in agreeing to participate in the
entire prosecution story as set out
evening conference, it would be
above. It is apparent from his
reasonable to infer that he had a hand
statement that originally Nasib Ullah
60 in the disappearance of Yusuf's son
was suspected as being responsible
or was at least aware of his
25 for the disappearance of Yusuf's son.
whereabouts. Mohan would not have
During the conversation that was
agreed to go to Nasib Ullah's house
held in the morning Nasib Ullah
in the night and retain exhibit Ka-3
managed to create an impression on
65 with him if he was wholly
the remaining accused that Mohan
unconnected with the disappearance
30 had a hand in it and was in a position
of the child.
to restore the missing child of Yusuf.
Mohan continued to assert that he 10. The incident in which Puran
had no hand in the mischief and was received the fatal knife blow took
totally unaware of the whereabouts 70 place soon after Kunwar Pal arrived
35 of the missing child. In order to solve on the scene with his companions
the problem Mohan was again called and asked Mohan and Puran to return

122
 home. They sot up and started from 12. Ram Lal (P. W. 2) had arrived on
the place towards their house. It was the scene in the company of Kunwar
at this stage that Nasib Ullah pointed Pal a few minutes before the
to the other accused that the man incident. He stated that on his arrival
5 responsible for the disappearance of 40 he found the four accused. Mohan
Yusuf's child was going away. The Lai and Puran sitting on the ground
accused had already formed an and that when the two victims started
impression that Mohan had a hand in leaving the place on the request of
the disappearance of the child. They Kunwar Pal. Babu and Kalua
10 must have been annoyed that even 45 assaulted Mohan with sticks and
after receiving an assurance in when Puran stepped forward to save
writing Mohan was walking awav his father, he was given a knife blow
without disclosing the whereabouts by Yusuf. The presence of this
of the missing child. Kalua and Babu witness on the scene is established by
15 started the assault on Mohan with 50 the fact that he had accompanied
sticks. Puran, who was standing close Mohan to the police station which
by, rushed forward to save him the latter did immediately after the
whereupon Nasib Ullah. Kalua and occurrence. He has also assisted
Babu exhorted Yusuf to beat him. On Mohan in arresting Nasib Ullah and
20 their exhortation Yusuf whipped out 55 taking him to the police station.
a knife from his pocket and strucjc a Mohan was an old man and could not
blow at Puran in the abdominal possibly apprehend Nasib Ullah all
region. alone unless he was assisted by a
couple of other persons. From
11. The medical evidence on record
60 Mohan's evidence it is clear that he
25 leaves no room for doubt that Mohan
had left his son Kunwar Pal near the
was present at the time of the
dead body of Puran. He must have
incident and had witnessed the entire
been assisted by some others in
occurrence. The fact that a report was
escorting an unwilling man. Nasib
lodged by Mohan immediately after
65 Ullah. to the police station. We find
30 the occurrence lends support to his
no sufficient reason to doubt the
claim that he was present at the time
presence of this witness at the time of
of the incident. This claim is further
the incident.
strengthened from the fact that Nasib
Ullah was also taken to the police 13. The prosecution also relied on the
35 station after effecting his arrest. 70 testimony of Shankar (P. W. 7) and
Pema (P. W, 9). The learned trial

123
 Judge did not find it possible to time of the incident. The prosecution
accept the testimony of Shanker and evidence was to the effect that there
we find no sufficient reason to differ were two electric poles near the
from his assessment about the 40 scene of incident and they provided
5 veracity of this witness. With regard sufficient light there. It was also
to Pema's presence on the scene the claimed that the night of occurrence
learned trial Judge felt that it could was a moonlit night as it was the
not be accepted with as much tenth day of waxing moon and the
certainty as in the case of Ram Lai 45 moon must be of two third of the full
10 but his statement also deserved size. The accused examined Budh
weight. Pema was also one of the Deo who on the basis of the
persons whom Kunwar Pal had municipal records, deposed that the
collected before going to Nasib street lights had not been lighted on
Ullah's place. It appears quite 50 the night of occurrence before 2.00
15 probable that when Mohan and Puran A. M. Relying on this evidence, the
did not return till about rmd-night, learned Judge held that the
Kunwar Pal must have felt anxious availability of electric light at the
about them and before going to time of occurrence was not free from
Nasib Ullah's place, he must have 55 doubt. He however, came to the
20 collected some persons to accompany conclusion that there was enough
him. The mere fact that these persons light provided bv the moon and there
were not armed would not indicate was no chance of making a mistake
that they could not have gone with in recognising the assailants. It must
Kunwar Pal. Probably these people 60 he borne in mind that the accused
25 did not apprehend any serious trouble and the victims were sitting together
and. therefore, went there unarmed. for about four hours trying to solve
Pema's presence on the scene was. their dispute. It is also proved from
therefore, quite probable. Even if his the testimony of Akhtar Hussain (P.
testimony is not taken into 65 W. 8) that there was a lantern at the
30 consideration, that would not weaken place which provided sufficient light.
the prosecution case or create any It is also in evidence that Exhibit Ka-
doubt with regard the salient features 3 was written out _ on the spot.
of the case. Unless there was sufficient light.
70 Exhibit Ka-3 could not have been
14. In the trial Court a lot of
written out there. The defence
35 controversy was created regarding
suggestion that due to absence of
the availability of electric light at the
sufficient light the real assailants

124
 could not be recognised has no legs The protracted discussion between
to stand and must be discarded. On a the parties had an assurance in
careful consideration of the evidence writing that he would take no action,
on record we are satisfied that Yusuf Mohan continued to deny that he had
5 must be held responsible for causing 40 a hand in the dis-apprearance of the
the death of puran. child or knew his whereabouts. In
these circumstances, it was
15. Sri C. S. Saran raised the plea of
contended, it was quite natural for
grave and sudden provocation in
Yusuf to have lost his self-control
mitigation of the offence. Exception I
45 when he saw Mohan walking away
10 to Section 300, IPC reads:
with his son acted in the manner and
Culpable homicide is not murder if if he acted in a manner which
the offender, whilst deprived of the resulted in the death of Puran. the
power of self-control by grave and offence committed by him could not
sudden provocation, causes the death 50 be termed murder within the meaning
15 of the person who gave the of Section 300, L P. C. The stand
provocation or causes the death of taken by the State, on the other hand,
any other person by mistake or was that the case fell squarely within
accident. the purview of Section 300 "thirdly".
Under this exception culpable 55 16. The question that the Court has to
20 homicide is not murder if the consider is whether a reasonable
offender causes death of the person person placed in the same position as
who gave the provocation or that of Yusuf would have reacted in the
any other person by mistake or manner in which the accused did.
accident provided the provocation 60 The applicability of the doctrine of
25 was grave and sudden and by reason provocation rests on the fact that it
of the said provocation the offender brings about a sudden and temporary
was depriyed of his power of self- loss of self-control. As laid down by
control and the offence was Goddard, C. J. in R. v. Duffy. 1949
committed during the continuance of 65 (1) All ER 932:
30 deprivation of the power of self-
Provocation is some act. or series of
control. It was contended that
acts, done by the dead man to the
Yusuf's son was missing for the
evidence on record does not indicate
preceding three or four days and an
accused which would cause in any
impression had been created in his
70 reasonable person and actually
35 mind that Mohan had a hand in it.
causes in the accused, a sudden and

125
 temporary loss of self-control, 35 subsequent act caused grave sudden
rendering the accused so subject to provocation to cause death.
passion as to make him or her for the
17. learned Counsel for the appellant
moment not master of his mind.
also sought support from the
5 The test applied is the conduct of a following observations of Beg. J. in
reasonable person in circumstances 40 Akhtar v. State :
which give rise to grave and sudden
A greater attention is paid to the
provocation. In K. M. Nanavati v.
subjective condition of the particular
State of Maharashtra Subba Rao, J.
offender under our law. and
10 laid down:
conformity to the standards of an
What a reasonable man will do in 45 artificial or notional or imaginary
certain circumstances depends upon reasonable man by the offender is
the customs, manners, way of life, certainly not required under our law.
traditional values -'etc.; in short, the We are. as I understand the law in
15 culture, social and emotional this country, not to conjecture what
background of the society to which 50 an imaginary reasonable man would
an accused belongs. have done when placed in the
circumstances of the accused, but we
Relying on this observation it was
have to decide whether a particular in
contended that keeping in mind the
the circumstances found, could
20 cultural, social and emotional
55 reasonably be held to have been and
background of the would not be
actually was so suddenly and gravely
unreasonable to hold that the conduct
provoked as Do be deprived of his
of Mohan in walking away with
power of self-' control and. therefore,
written assurance in his pocket and
get the benefit of the, exception No.
25 persisting in his denial of any
60 1 to Section 300, Indian Penal Code.
knowledge about the missing boy
must have caused grave and sudden There can be no doubt that situated
provocation in which the accused lost as the accused was. he must have felt
self-control and Reliance was also annoyed by the conduct of Mohan,
30 placed on another rule laid down in but the that the accused- lost his self-
Nanavati's case that the mental 65 control when he noticed Mohan
background created by the previous walking away, In fact the evidence
act of the victim may be taken into points out that Yusuf remained quiet
consideration in ascertaining that a at that particular moment and did
nothing which could indicate that he

126
 was provoked to such e passion that influence of passion arising from the
he had lost self-control. According to conduct of the victim, the accused is
the eve-witnesses when Mohan deprived of the benefit of the
started leaving the place. Nasib Ullah 40 exception in mitigation of the offence
5 shouted to his companions that they which he has committed. It is
were sparing the man who was reasonable to conclude in the present
withholding the missing boy and case that the fatal blow which
allowing him to leave. On this resulted in the death of Puran could
exhortation Kalua and Babu started 45 not be directly traced to the influence
10 the assault on Mohan with sticks. At of passion arising from the conduct
that stage Puran stepped forward to of Mohan or Puran.
protect his father and then the three
19. The question that we have still to
co-accused instigated Yusuf to beat.
consider is whether Yusuf could be
It was at this stage that Yusuf
50 held guilty of the charge of murder.
15 whipped out the knife from his
The contention on behalf of the State
pocket and gave a blow which landed
that the offence fell squarelv under
in the abdominal region of Puran.
Section 300 "thirdly" does not appear
But for the instigation by the co-
to be sound. In Faqira v. State it was
accused Yusuf might not have ioined
55 pointed out that it was not enough to
20 in the assault at all. On the evidence
establish that the iniuries were
in the case we are not satisfied that
sufficient in the ordinary course of
the offence committed by Yusuf was
nature to cause death but it must
the result of grave and sudden
further be established that the
provocation which entitled him to
60 offender intended to cause an injury
25 claim the benefit of the First
of that nature. Beg. J. observed:
Exception to Section 300, I, P. C.-
To attract the provisions of Clause
18. Another feature of the case which
(3), two requirements have to be
renders the First Exception to Section
fulfilled. The first requirement is that
300. I. P. C, inapplicable to the case
65 the act by which the death is caused
30 of the appellant is the fact that the
should have been done with the
provocation did not flow directly
intention of causing bodily injury to
from the victim. If some other factors
any person. This requirement would
emanating from other sources
not present much difficulty in most
intervene which lead to the
70 of the cases as the very fact that a
35 provocation and the fatal blow
person strikes or assaults another or
cannot be traced directly to the
does an act to harm another would by

127
 necessary implication point to the First, it must establish, quite
conclusion that he intended to cause 35 objectively, that a bodily injury is
bodily injury to that person. The present;
second requirement of this clause is
Secondly, the nature of the injury
5 that bodily injury intended to be
must be proved; these are purely
inflicted should be such as is
objective investigations.
sufficient in the ordinary course of
nature to cause death. 40 Thirdly, it must be proved that there
was an intention to inflict that
It was further observed:
particular bodily injury, that is to say,
10 ... that to-bring an act within the four that it was not accidental or
corners of Clause (3). it is not unintentional, or that some other kind
enough that the injury actually 45 of injury was intended.
inflicted is sufficient in the ordinary
Fourthly, it must be proved that the
course of nature to cause death. It is
injury of the type just described made
15 further necessary that the offender
up of the three elements set out
should intend to cause an injury of
above is sufficient to cause death in
this nature. From the fact that the
50 the ordinary course of nature. This
injury caused is sufficient in the
part of the enquiry is purely objective
ordinary course of nature to cause
and inferential and has nothing to do
20 death, it does not necessarily follow
with the intention of the offender.
that the offender intended to cause an
injury of that nature. The one does Bose. J. further observed;
not conclusivelv prove the other. It is 55 Once these four elements are
possible that the offender intended to established by the prosecution (and,
25 cause one degree of harm and the of course, the burden is on the
injury actually inflicted cause a prosecution throughout) the offence
degree of harm exceeding in violence is murder under Section 300
the harm intended by him. 60 "thirdly". It does not matter that there
20. The Supreme Court in Virsa was no intention to cause death. It
30 Singh v. State of Punjab has laid does not matter that there was no
down that the prosecution must prove intention even to cause an injury of a
the following facts before it can bring kind that is sufficient to cause death
a case under Section 300 "thirdly":- 65 in the ordinary course of nature (not
that there is any real distinction
between the two). It does not even
matter that there is no knowledge that
128
 an act of that kind will be likely to 21. The Supreme Court had occasion
cause death. Once the intention to to consider the same provisions in
cause the bodily injury actually Laxman Kalu v. State of Maharashtra
found to be present is proved, the rest , In that case a single injury was
5 of the enquiry is purely objective and 40 inflicted on the deceased with knife
the only question is whether, as a 2" below the outer 1/3 of right
matter of purely objective inference, clavicle on the right side of the chest
the injury is sufficient in the ordinary and penetrated to the depth of 4" into
course of nature to cause death. the chest cavity. . Dealing with the
45 question whether the offence could
10 The law laid down in Virsa Singh's
be covered by "thirdly" of Section
case (supra) was considered in the
300 of the Indian Penal Code,
case of Rajwant Singh v. State of
Hidayatullah, C. J. observed:
Kerala AIR 1966 SC 1874 : 1966 Cri
LJ 1509 wherein it was emphasised That section requires that the bodily
15 that .apart from other factors it must 50 injury must be intended and the
be proved that there was an intention bodily injury intended to be caused
to inflict that very injury and not must be sufficient in the ordinary
some other injury and that it was not course of nature to cause death. This
accidental or unintentional. The same clause is in two parts: the first part is
20 principle was reiterated in Harjinder 55 a subjective one which indicates that
Singh v. Delhi Administration. . the injury must be an intentional one
After analysing the evidence in the and not an accidental one. the second
case the Court came to the part is objective in that looking at the
conclusion that it could not be said injury intended to be caused, the
25 with any deflniteness that the 60 court must be satisfied that it was
appellant aimed that blow at the sufficient in the ordinary course of
particular part of the thigh knowing nature to cause death.
that it would cut the artery and in the
On the basis of the evidence it was
circumstances of the case it could not
held that the first part was complied
30 be said that it had been proved that it
65 with and the second part was not
was the intention of the appellant to
fulfilled because but for the fact that
inflict that particular injury on that
the injury caused the severing of
particular place and it was. therefore,
artery, death might not have ensued
not possible to apply clause (2) of
and the ' injury which the accused
35 Section 300 to the act of the accused.
70 intended to cause did not include
specifically the cutting of the artery

129
 but to wound the victim in the his father. In these circumstances it
neighbourhood of the clavicle. In appears to be more reasonable to
these circumstances Section 300 hold that the injury caused was
"thirdly" was held to be inapplicable. 40 unintentional not only in the sense
that it was caused to a person who
5 22. In the case before us Mohan'e
was not intended to be the victim but
evidence is that Puran was a couple
also in the sense that the precise
of steps behind him when the assault
injury caused has not been shown to
on Mohan started and Yusuf was in
45 have been intended by the assailant. .
froni of him. Puran stepped forward
However, he must be credited with
10 to protect his father from the assault
the knowledge that a blow with a
of Kalua and Babu. At this moment
knife was likely to result in death. A
the three co-accused exhorted Yusuf
single blow was given with a knife
to beat and on their exhortation
50 which, according to Mohan (P.W. 1).
Yusuf thrust a knife in the abdominal
was not visible till it was taken out of
15 region of Puran. Mohan was being
the pocket. It indicates that the knife
beaten by Kalua and Babu with
must have been a small one.
sticks and it is just possible that he
may not have carefully noticed the In these circumstances it would be
circumstances in which Puran 55 legitimate to hold that the offence
20 received the fatal injury. Pema (P.W. committed was culpable homicide
9), deposing about that particular not amounting to murder punishable
moment. clearly stated that when under the II Part of Section 304,
Mohan was being assaulted Yusuf I.P.C.
was standing towards north-west of
60
25 him and when Yusuf attacked with
his knife, Mohan stepped aside and
the knife hit Puran This appears to be
a more probable version of the
incident. The accused had no animus
30 against Puran and they must have
concentrated on Mohan whom they
considered to be responsible for the 65
mischief. Yusuf must have, therefore,
tried to hit Mohan but unfortunately
35 the blow landed on his son Puran
who had stepped forward to protect

130
 15. over the said land a berry tree
existed. Though, initially the tree was
Ghapoo Yadav v. State of M.P.
in possession of Ramlal, after
(2003) 3 SCC 528
measurement he parted with the
ARIJIT PASAYAT, J. – 40 possession thereof. The said tree was
5 1. Appellants (hereinafter referred to cut by the family members of Ramlal
as 'the accused' by their respective (PW-1) a day prior to the incident for
names) question legality of the which the deceased had altercation
judgment of the Madhya Pradesh with the accused persons. On the date
High Court dated 18.4.2001, 45 of the incident i.e. 9.6.1986 there
10 upholding their conviction for were altercations between the
offences punishable under Sec..148 accused persons and the deceased,
and Sec..302 read with Sec.. 149 of his brother Lekhram and father
the Indian Penal Code, 1860 (‘the Ramlal. Accused Janku enquired
IPC’) and the sentence of rigorous 50 from the deceased as to why they
15 imprisonment for three years and fine were cutting the tree. Lekhram
of Rs. 2,000/- with default responded that it was cut three days
stipulation, and imprisonment for life prior to the incident as the tree
and fine of Rs. 5,000/- with default belonged to them and was planted by
stipulation respectively. 55 their family members. The deceased
claimed that he had not cut the tree.
20 2. Lekhram (PW-2) and Gopal (‘the This led to altercations and scuffles
deceased’) were sons of Ramlal amongst them and the accused
(PW-1). Accused Gapoo Yadav is the persons assaulted the deceased,
father of accused Janku, Kewal and 60 which resulted in a fracture of his
Mangal Singh. Accused Sunder is the leg. When Ramlal and Lekhram went
25 nephew of accused Gapoo. Deceased, to save him, the accused persons ran
the witnesses and the accused towards them threateningly. Ramlal
belonged to the same village and and Lekhram fled away from the
there was land dispute between them. 65 place of the incident, and returned
On the request made by Ramlal (PW- later on with the other villagers. They
30 1), measurement of the land was took the deceased, who was then
done by the revenue authority. On grasping for breath, on a cot to
the basis of the said measurement, it Maharajpur Police Station.
was found that land belonging to 70 Information was given by the
accused Mangal Singh was in the deceased to the police at 8.45 p.m.
35 possession of Ramlal (PW-1) and He was sent for treatment and was

131
 examined by Dr. R.K. Chaturvedi were upheld. Though, in support of
(PW-3). On examination he found 7 the appeal learned counsel for the
injuries on his body. His dying appellants attacked the findings
declaration was recorded. Later on, 40 recorded, ultimately he confined his
5 the deceased took his last breath on arguments to the question relating to
10.6.1986 at 2.00 a.m. Dr. nature of the offence. He further
Chaturvedi sent the intimation of conceded that if the factual findings
death to the Police Station. Though as recorded are affirmed then Sec..s
initially a case was registered under 45 148 and 149 would have application.
10 Sec.. 307 IPC, the same was In our view, the approach is well
converted to one under Sec.. 302 founded because the trial court and
IPC. Port mortem was conducted by the High Court having analysed the
Dr. D.N. Adhikari (PW-6). evidence in detail, concluded that the
Investigation was undertaken and on 50 accused persons were culprits.
15 completion thereof charge sheet was
4. It was the stand of the learned
filed indicating alleged commission
counsel for the appellants that the
of offences punishable under Sec..s
injuries sustained by the deceased
147, 148 and 302 read with Sec.. 149
were in course of a sudden quarrel,
IPC. The case was committed to the
55 without pre-meditation and without
20 Court of Sessions, and finally
cruel intents and, therefore, Sec.. 302
charges were framed under Sec..148
IPC was not applicable. According to
and Sec..302 read with Sec..149 IPC.
him, Sec.. 302 IPC cannot be applied
The accused persons pleaded
even if the prosecution case is
innocence and claimed false
60 accepted in toto and Exception 4 to
25 implication.
Sec.. 300 is clearly applicable.
3. On consideration of the evidence
5. In response, learned counsel
on record, the trial court found that
appearing for the State of Madhya
the accused persons were guilty and
Pradesh submitted that it is a case to
accordingly convicted and sentenced
65 which Sec.. 302 has clear application,
30 them as aforenoted. It is to be noted
and the courts below have rightly
that apart from the evidence of the
applied it along with Sec..s 148 and
two eyewitnesses, reliance was also
149 IPC.
placed on the dying declaration
(Ex.P-1) recorded by Dr. Chaturvedi 6. The question is about applicability
35 (PW-3). In appeal, the conviction and 70 of Exception 4 to Sec.. 300, IPC. For
consequential sentences imposed bringing in its operation it has to be

132
 established that the act was implies mutual provocation and
committed without premeditation, in blows on each side.
a sudden fight, in the heat of passion,
8. The homicide committed is then
upon a sudden quarrel, without the
40 clearly not traceable to unilateral
5 offender having taken undue
provocation, nor in such cases could
advantage and not having acted in a
the whole blame be placed on one
cruel or unusual manner.
side. For if it were so, the Exception
7. The fourth Exception to Sec.. 300, more appropriately applicable would
IPC covers acts done in a sudden 45 be Exception 1. There is no previous
10 fight. The said exception deals with a deliberation or determination to fight.
case of prosecution not covered by A fight suddenly takes place, for
the first exception, after which its which both parties are more or less to
place would have been more be blamed. It may be that one of
appropriate. The exception is 50 them starts it, but if the other had not
15 founded upon the same principle, for aggravated it by his own conduct it
in both there is absence of would not have taken the serious turn
premeditation. But, while in the case it did. There is then mutual
of Exception 1, there is total provocation and aggravation, and it is
deprivation of self-control, in case of 55 difficult to apportion the share of
20 Exception 4, there is only that heat of blame which attaches to each fighter.
passion which clouds men's sober The help of Exception 4 can be
reason and urges them to deeds invoked if death is caused (a) without
which they would not otherwise do. premeditation, (b) in a sudden fight;
There is provocation in Exception 4 60 (c) without the offender's having
25 as in Exception 1; but the injury done taken undue advantage or acted in a
is not the direct consequence of that cruel or unusual manner; and (d) the
provocation. In fact, Exception 4 fight must have been with the person
deals with cases in which killed. To bring a case within
notwithstanding that a blow may 65 Exception 4 all the ingredients
30 have been struck, or some mentioned in it must be found. It is to
provocation given in the origin of the be noted that the ‘fight’ occurring in
dispute or in whatever way the Exception 4 to Sec..300, IPC is not
quarrel may have originated, yet the defined in the IPC. It takes two to
subsequent conduct of both parties 70 make a fight. Heat of passion
35 puts them, in respect of guilt, upon requires that there must be no time
equal footing. A 'sudden fight' for the passions to cool down and in

133
 this case, the parties have worked injury was inflicted when he was in a
themselves into a fury on account of helpless condition. The assaults were
the verbal altercation in the 40 made at random. Even the previous
beginning. A fight is a combat altercations were verbal and not
5 between two and more persons physical. It is not the case of the
whether with or without weapons. It prosecution that the accused
is not possible to enunciate any appellants had come prepared and
general rule as to what shall be 45 armed for attacking the deceased.
deemed to be a sudden quarrel. It is a The previous disputes over land do
10 question of fact and whether a not appear to have assumed
quarrel is sudden or not must characteristics of physical combat.
necessarily depend upon the proved This goes to show that in the heat of
facts of each case. For the application 50 passion upon a sudden quarrel
of Exception 4, it is not sufficient to followed by a fight the accused
15 show that there was a sudden quarrel persons had caused injuries on the
and there was no premeditation. It deceased, but had not acted in a cruel
must further be shown that the or unusual manner. That being so,
offender has not taken undue 55 Exception 4 to Sec.. 300 IPC is
advantage or acted in cruel or clearly applicable. The fact situation
20 unusual manner. The expression bears great similarity to that in
'undue advantage' as used in the Sukhbir Singh v. State of Haryana
provision means 'unfair advantage'. [(2002)3 SCC 327]. Appellants are
In the case at hand, out of the seven 60 to be convicted under Sec.. 304 Part
injuries, only injury no.2 was held to I, IPC and custodial sentence of 10
25 be of grievous nature, which was years and fine as was imposed by the
sufficient in the ordinary course of trial court would meet the ends of
nature to cause death of the deceased. justice. The appeal is allowed to the
The infliction of the injuries and their 65 extent indicated above.
nature proves the intention of the
30 accused appellants, but causing of
such injuries cannot be termed to be
either in a cruel or unusual manner
for not availing the benefit of
Exception 4 to Sec..300 IPC. After
35 the injuries were inflicted the injured 70
had fallen down, but there is no
material to show that thereafter any

134
 HOMICIDE BY RASH OR 2. The appellant along with two
NEGLIGENT ACT NOT others was tried for committing
AMOUNTING TO CULPABLE 35 murder of one Satish (hereinafter
HOMICIDE (Sec.. 304A) referred to as 'the deceased') and
5 16. causing injuries with knife to
Harkishan and was convicted for
Mahesh Balmiki V State of M.P.
offences punishable under Sections
2000 1 SCC 319: 1999, Crl.J 4301
40 302 and 304 I.P.C. read with Section
Case Note: 34 I.P.C. He was sentenced to life
Criminal - provocation - Sections 34, imprisonment and three years
10 300, 302, 304, 324 and 326 of Indian rigorous imprisonment for the said
Penal Code, 1860 - appeal against offences by learned Sessions Judge
conviction for offences punishable 45 in Sessions Case No. 198 of 1981 on
under Sections 302 and 324 - fatal July 17, 1982. A Division Bench of
injury inflicted with premeditation - the High Court of the Madhya
15 appellant gave fatal blow with knife Pradesh at Gwalior in Criminal
disastrous - appellant taken undue Appeal No. 171 of 1982 confirmed
advantage and acted in cruel manner 50 his conviction under Sections 302
- Exception 4 to Section 300 not and 324 I.P.C. and sentence for the
applicable - no principle that in all said offences and dismissed his
20 cases of single blow Section 302 not appeal on April 30, 1998. Against the
attracted - knife blow given by judgment and order of the High
appellant so imminently dangerous 55 Court, he is in appeal before this
that it must in all probability cause Court.
death or such bodily injury as is 3. Dr. T.N. Singh, learned senior
25 likely to cause death - held, appellant counsel for the appellant, has urged
rightly convicted under Sections 302 that it is a case falling under
and 324. 60 Exception 4 to Section 300 I.P.C.
ORDER and, in any event, as the appellant
had given only a single blow with
S.S.M. Quadri, J. knife, he ought not to have been
30 1. Leave is granted limited to the convicted under Section 302 I.P.C.;
question of nature of offence. 65 his conviction could only be under
Section 304 I.P.C.

135
 4. Mr. Anoop Choudhary, learned 35 deceased, found the following
senior counsel appearing for the injuries : Stab wound 1.5 x .5 cm.
State, argued that none of the vertical situated on interior aspect of
requirements of Exception 4 are chest on left border of sternum and at
5 present and the circumstances clearly the stern costal joint of 6th and 7th
suggest that the appellant had 40 rib, sternum cut and fracture in arms
intention to kill the deceased, 9.2 area, truck of the wound going
therefore, he was rightly convicted through and through and sternum,
under Section 302 I.P.C. pericardium (pericardium), anterior
and posterior well of rt. vertical (It)
10 5. Apropos the contentions, we have
45 dome of diaphragm (diaphragm), left
perused the judgments of the Trial
lobe of liver cardiac and of stomach
Court and the High Court. It appears
perforated total depth of wound was
that the appellant and three others
19cm. and direction of truck was
snatched the wrist watch of a boy
going downwards posteriorly and
15 known to the deceased and
50 towards abdominal cavity pericardial
Harkishan. At the request of that boy,
(illega) (iliac) full of blood,
they asked the appellant and his
abdominal cavity full of blood,
associates to return the watch. The
middle media sternum ecchymosed
appellant told the deceased and
(ecchymosis) around wound track.
20 Harkishan to come to some specified
55 Stomach contention coming out in
place. On reaching there, they had
peritoneum cavity.
exchange of hot words and then
Naresh, Pappu and Laxman caught 6. P.W. 5 stated that the deceased
hold of the deceased and the died due to shock and haemorrhage
25 appellant gave a knife blow on the resulting from the said wound which
chest of the deceased as a result of 60 could have been caused by a sharp-
which he fell down. The appellant edged cutting weapon.
also inflicted injuries with knife on
7. Now Exception 4 to Section 300
Harkishan who rushed to save the
I.P.C., is in the following terms :
30 deceased. While the deceased was
being taken to the police station, he Exception 4.- Culpable homicide is
succumbed to the injuries. Dr. D.S. 65 not murder if it is committed without
Badkur (P.W. 5), who conducted premeditation in a sudden fight in the
postmortem on the person of the heat of passion upon a sudden quarrel

136
 and without the offender's having that truck of the wound had gone
taken undue advantage or acted in a through sternum, pericardium
cruel or unusual manner. 35 anterior and posterior after passing
the ribs and thereafter entered the
Explanation. - It is immaterial in
liver and perforated a portion of
5 such cases which party offers the
stomach. Total depth of wound was
provocation or commits the first
19cm and direction of truck was
assault." The requirements of this
40 going downwards posteriorly. The
exception are :
impact of the single blow with knife
(a) without premeditation in a sudden has been disastrous. Therefore, it
10 fight; cannot be said that the appellant has
(b) in the heat of passion upon a not taken undue advantage or not
sudden quarrel; 45 acted in cruel or unusual manner. In
our view, Exception 4 has, therefore,
(c) the offender has not taken undue no application on the facts of this
advantage; and case.
15 (d) the offender has not acted in a 9. Adverting to the contention of a
cruel or unusual; manner. 50 single blow, it may be pointed out
Where these requirements are that there is no principle that in all
satisfied, culpable homicide would cases of single blow Section 302
not be murder. I.P.C. is not attracted. Single blow
may, in some cases, entail conviction
20 8. On the facts of this case, it cannot
55 under Section 302 I.P.C., in some
said that the fatal injury was inflicted
cases under Section 304 I.P.C. and in
without premeditation. Indeed, the
some other cases under Section 326
appellant asked the deceased to come
I.P.C. The question with regard to the
to a particular place to receive the
nature of offence has to be
25 watch. There, three associates of the
60 determined on the facts and in the
appellant caught hold of the deceased
circumstances of each case. The
and the appellant gave the fatal blow
nature of the injury, whether it is on
with the knife. The stab wound was
the vital or non-vital part of the body,
given on the chest on the left side of
the weapon used, the circumstances
30 the sternum between the costal joint
65 in which the injury is caused and the
of the 6th and 7th rib and both the
manner in which the injury is
ribs have been fractured. It appears
137
 inflicted are all relevant factors not, therefore, consider it necessary
which may go to determine the 35 to refer to them in detail.
required intention or knowledge of
the offender and the offence
5 committed by him. 11. For the above reasons, we are of
the view that the appellant had
In the instant case, the deceased was
rightly been convicted and sentenced
disabled from saving himself because
40 under Sections 302 and 324 I.P.C. by
he was held by the associates of the
Trial Court and the High Court. We
appellant who inflicted though a
find no merit in this appeal which is
10 single yet a fatal blow of the
accordingly dismissed.
description noted above. These facts
clearly establish that the appellant
had intention to kill the deceased. In 45
any event, he can safely be attributed
15 knowledge that the knife blow given
by him is so imminently dangerous
that it must in all probability cause
death or such bodily injury as is
likely to cause death.
20 10. Dr. Singh invited our attention to 50

the following judgments of this Court

in Tholan v. State of Tamil Nadu
MANU/SC/0132/1984 :
1984CriLJ478 , Ranjitsinh
25 Chandrasinh Atodaria v. State of
Gujarat AIR 1994 SC 1060 and
55
Balbir Singh v. State of Punjab
MANU/SC/1242/1995 for altering
conviction from Section 302 I.P.C. to
30 Section 304 I.P.C. A perusal of these
judgments shows that these are
instances of application of the
aforementioned principles. We do
60

138
 17.
Shashi Nayar V unioin of India 2. Raj Goapal Nayar, the petitioner's
husband was tried for offence under
AIR 1992 SC 395
35 Section 302, IPC for having killed
Hon'ble Judges/Coram: K.N. Singh, his father and step brother. The
5 P.B. Sawant, N.M. Kasliwal, B.P. Sessions Judge by his judgment and
Jeevan Reddy and G.N. Ray, JJ. order dated 24.4.1986 convicted Raj
Criminal - constitutional validity - Gopal Nayar and awarded sentence
Section 302 of Indian Penal Code, 40 of death. On appeal, the High Court
1860, Section 56 of Indian Evidence confirmed the death penalty and
10 Act, 1872 and Articles 21, 32 and dismissed Raj Gopal's appeal against
225 of Constitution of India - dispute the order of the Sessions Judge. Raj
regarding constitutional validity of Gopal thereafter filed a special leave
capital punishment - whether capital 45 petition before this Court challenging
punishment violates right to life the judgment and order of the
15 guaranteed under Article 21 - Sessions Judge and the High Court,
question answered negatively in but the special leave petition was also
precedents by Apex Court - in view dismissed by this Court. Review
of precedent capital punishment 50 petition filed by him was also
constitutionally valid as there is no dismissed. Consequently, his
20 reason to take different views. conviction and the sentence of death
stood confirmed by all the courts.
ORDER Thereupon, he filed mercy petitions
K.N. Singh, J. 55 before the Governor of Jammu &
Kashmir and the President of India,
1. Smt. Shashi Nayar wife of Raj
but the same were rejected. He
Gopal Nayar who has been awarded
challenged the order of the President
25 death sentence for offence under
of India rejecting the mercy petition
Section 302 of the Indian Penal Code
60 before this Court by means of a writ
['IPC' for short] has approached this
petition under Article 32 of the
Court by means of this petition under
Constitution, but the same was also
Article 32 of the Constitution
dismissed. Another writ petition
30 challenging the constitutional
under Article 226 of the Constitution
validity of death penalty.
65 was filed before the Jammu &

139
 Kashmir High Court for quashing the (3) The penalty of death sentence has
sentence imposed on him but the a dehumanising effect on the close
same was also rejected. As the legal 35 relations of the victims and it
proceedings before the court failed, deprives them of their fundamental
5 he was to be hanged on 26.10.1991. rights under Article 21 of the
Smt. Shashi Nayar, the petitioner, Constitution, to a meaningful life.
thereupon filed the present petition
(4) The execution of capital
under Article 32 of the Constitution
40 punishment by hanging is barbaric
before this Court challenging the
and dehumanising. This should be
10 validity of the capital punishment
substituted by some other decent and
with a prayer for the quashing of the
less painful method in executing the
sentence awarded to Raj Gopal
sentence.
Nayar. The petition was entertained
by a Division Bench on 25.10.1991 45 4. The questions raised by Shri Jain
15 and the matter was referred to the have already been considered by this
Constitution Bench for consideration, Court in detail on more than one
and meanwhile the execution of the occasion. In Jagmohan Singh v. State
condemned prisoner was stayed. of U.P. MANU/SC/0139/1972 :
50 1973CriLJ370 and in Bachan Singh
3. Mr. Ravi K. jain, learned Counsel
v. State of Punjab
20 for the petitioner made the following
MANU/SC/0077/1979 :
submissions:
1980CriLJ211 , this Court has on a
(1) Capital punishment is violative of detailed consideration, held that the
Article 21 of the Constitution of 55 capital punishment does not violate
India as the Article absolutely Article 21 of the Constitution. In
25 prohibits deprivation of a person's Bachan Singh's case (supra), the
life. court considered all the questions
raised in this petition except question
(2) Capital punishment does not
60 No. 4, and the majority judgment
serve any social purpose and in the
rejected the same by a detailed
absence of any study, the barbaric
reasoned order. Since we fully agree
30 penalty of death should not be
with those reasons, we do not
awarded to any person as it has no
consider it necessary to reiterate the
deterrent effect.
65 same.

140
 5. Learned counsel further urged that recommendations in the following
the view taken in Jagmohan Singh's words:
and Bachan Singh's cases (supra) is
Having regard, however, to the
incorrect and it requires
conditions in India, to the variety of
5 reconsideration by a larger Bench.
40 the social upbringing of its
He, therefore, requested us to refer
inhabitants, to the disparity in the
the matter to a larger Bench as the
level of morality and education in the
question relates to the life of a
country, to the vastness of its area, to
citizen. He urged that the award of
the diversity of its population and to
10 death penalty is a serious matter as it
45 the paramount need for maintaining
deprives a citizen of his life in
law and order in the country at the
violation of Article 21 of the
present juncture India cannot risk the
Constitution and as such the court
experiment of abolition of capital
should consider the matter again. We
punishment.
15 are fully conscious of the effect of
the award of capital punishment. But 50 6. Shri Jain urged that the above
we are of the opinion that the capital Report indicates that in 1967 the Law
punishment as provided by the law is Commission was of the opinion that
to be awarded in rarest of the rare the country should not take the risk
20 cases as held by this Court. The of experimenting abolition of capital
procedure established by law for 55 punishment. However, since then
awarding the death penalty is much water has flown. Further, there
reasonable and it does not in any way is no empirical study before the
violate the mandate of Article 21 of Court to show that the situation
25 the Constitution. Since we agree with which prevailed in 1967 is still
the view taken by the majority in 60 continuing. Hence, the Court should
Bachan Singh's and Jagmohan reconsider the matter. We do not find
Singh's cases (supra), we do not find any merit in this submission. The
any valid ground to refer the matter death penalty has a deterrent effect
30 to a larger Bench. Learned counsel and it does serve a social purpose.
urged that the majority opinion in 65 The majority opinion in Bachan
Bachan Singh's case (supra) was Singh's case (supra) held that having
founded upon the 35th Report of the regard to the social conditions in our
Law Commission submitted in 1967, country the stage was not ripe for
35 which summarises the taking a risk of abolishing it. No
141
 material has been placed before us to 35 entertain this petition and reconsider
show that the view taken in Bachan the question. Since the question of
Singh's case (supra) requires the mode of execution of capital
reconsideration. Further, a judicial punishment has already been
5 notice can be taken of the fact that considered in detail by this Court in
the law and order situation in the 40 Deen Dayal's case (supra), we do not
country has not only not improved find any good reason to take a
since 1967 but has deteriorated over different view.
the years and is fast worsening today.
10 The present is, therefore, the most
inopportune time to reconsider the 8. The question of reasonableness in
law on the subject. Hence the request 45 the award of the capital punishment
for referring the matter to a larger to Raj Gopal Nayar has been
Bench is rejected. considered by the High Court and
this Court at various stages and
15 7. As regards the method of
consistently it has been answered
execution of the capital punishment
50 against the prisoner. Hence the
by hanging, this Court considered the
petition fails and is accordingly
same in detail in Deena alias Deen
dismissed. Interim relief order dated
Dayal and Ors. etc. etc., v. Union of
25.10.1991 is vacated.
20 India and Ors. etc. etc.,
MANU/SC/0077/1979 :
1980CriLJ211 and held that hanging
55
by neck was a scientific and one of
the least painful methods of
25 execution of the death sentence. We
find no justification for taking a
different view. Shri Jain, however,
brought to our notice that a learned
Judge of this Court while sitting
30 during vacation had issued notice to
the State on the question as to 60
whether the execution by hanging is
a cruel and unusual procedure.
Hence, he urged that we should

142
 18. 35 lands. Indra Kumar Patnaik, a trustee,
entrusted the management of the
Sikhar Behera v. State of Orissa affairs of the deity and its properties
AIR 1993 SCW 3162 to the villagers of Dimirisena to
which the prosecution party mainly
K. Jayachandra (J) 40 belongs. There were Sec. 145 CrPC
5 proceedings and a compromise and
since then the prosecution party has
The Judgment of the Court was been in possession of the land. The
delivered by K. JAYACHANDRA present dispute relates to the lands of
REDDY, J.- There are 14 appellants. 45 the deity which are locally known as
They along with 25 others were tried Panchamania lands, an area of 2.04
10 for offences punishable under Sec. acres. In one of the plots, paddy was
302, 302/34, 302/149, 232, 324 and cut and just before the present
324/149 IPC. The trial court occurrence, a proclamation under
convicted 16 of them and acquitted 50 Sec. 144 CrPC was issued and both
the rest. On appeal, the High Court parties were restrained from going to
15 acquitted two of them namely A-2 the fields. The order under Sec. 144
and A-7 and convicted the rest. The was served on some of the accused
14 convicted accused have preferred and a notice under Sec. 107 CrPC
this appeal. 55 also was served on the accused as to
2. The prosecution case is as follows. why they would not be called upon to
20 The accused, two deceased persons execute bonds for keeping peace. On
and the material witnesses belong to November 28, 1974, PW 5 ASI went
villages Khejuria and Dimirisena. to village Dimirisena for serving the
There was a long-standing dispute 60 order under Sec. 144 and the notice
between the two parties regarding under Sec. 107 on some of the other
25 possession of the lands belonging to accused persons. When PW 5 read
the deity installed at village out and explained the contents of the
Dimirisena. The deity owns 150 order to the members of the
acres of lands out of which 100 acres 65 prosecution party and wanted to
were in possession of the tenants and serve the notice, but they refused to
30 the remaining 50 acres were being let accept the same. The members of the
out for bhag cultivation annually. accused party also refused. After
The prosecution party claims that 40 refusing to receive the notice, a
families belonging to their party were 70 group of about 20 to 30 members of
in possession of those 50 acres of the prosecution party went to cut

143
 paddy from the Panchamania lands. the same incident, PWs 2, 3, 4, 6, 7,
Subsequently a group of about 15 8 and 9 also received several injuries.
persons of the prosecution party went PW 5, ASI of Police, who was
towards the said lands for carrying 40 present on the spot, sent a report
5 the paddy sheaves. While the second through a village servant on the basis
group had proceeded up to the of which a case was registered. All
Kalapatriri burial ground, they found the injured persons were brought to
that a group of 25 persons of the Brahmagiri Hospital and the Medical
accused party going there with lathis, 45 Officer, PW 11 gave first aid and
10 bhalis, tentas and other deadly sent all of them to District
weapons. The party was led by Headquarters Hospital at Puri. PW
Mahant Gobinda Das. At the same 11 recorded Ex. P-4, the dying
time another group of 50 persons of declaration of Kunja Samal, deceased
the accused party came armed with 50 2. He also examined the injured
15 various deadly weapons. The witnesses. Later postmortem was
members of the accused party conducted over the dead bodies of
surrounded the members of the the two deceased. The accused were
prosecution party. Mahant Gobinda arrested.
Das fired a shot from the gun which
55 3. Daitari Behera, one of the accused
20 hit Kulamani Behera (deceased 1), a
persons, also gave a report on the
member of the prosecution party and
basis of which a counter case was
he fell down on the ground. Then
registered against 63 persons
Gobinda Das snatched away a tenta
belonging to the prosecution party
from the hand of acquitted accused
60 including the injured witnesses. In
25 Chhaila Samal and stabbed deceased
that case 40 persons were convicted
1. Thereafter other persons assaulted
under Sec. 148, 324/149 and 323/149
him with deadly weapons as a result
IPC. Coming to the present case, the
of which he died on the spot. When
trial court relied on the evidence of
Kunja Samal (deceased
65 the injured witnesses and discussed
30 2), came to the rescue of deceased 1, their evidence in respect of each of
he was stabbed by A-16 as a result of the accused persons and ultimately
which he fell down on the ground. held that 16 of them were members
Some of the other accused persons of the unlawful assembly and
also assaulted deceased 2 as a result 70 accordingly convicted the 16 accused
35 of which he became unconscious and as mentioned above and sentenced
subsequently died. In the course of each of them to undergo

144
 imprisonment for life. In the trial whether the accused party could get
court, the convicted accused admitted benefit of the right of private defence
their presence but asserted that they 40 of property and person. The trial
were in possession of the disputed court held that there is no clear proof
5 lands and raised paddy thereon and that the accused persons were in
coming to know that the prosecution actual possession of the disputed
party armed with deadly weapons lands. The trial court further
were coming to cut the paddy 45 observed that some members of the
forcibly, they also went towards the accused party received injuries which
10 paddy fields. Seeing them the were not explained by the
prosecution party attacked them and prosecution. Ultimately, the trial
inflicted injuries on two of the court held that the accused were
accused persons. Having examined 50 members of the unlawful assembly
this plea, the trial court held that the and they were responsible for
15 plea of the accused persons cannot be causing the death of the two deceased
relied upon to determine as to how persons and for inflicting a number
the occurrence took place. The trial of injuries on the witnesses which
court also noted that the ASI, 55 were more grave and serious in
namely, PW 5, gave a different story comparison to the minor injuries
20 but the same can be relied upon as he received by the accused party. In this
was an independent witness. view of the matter, the trial court
According to PW 5's version and as held that the accused intentionally
accepted by the trial court, the 60 caused the death of the deceased
prosecution party had already got persons with cutting weapons and
25 engaged in cutting paddy and seeing they had gone to the fields with a
the accused party coming, the view to fight and also assault the
prosecution party ran towards them prosecution party and even to cause
carrying their deadly weapons and 65 death and ultimately convicted the 16
there was a fight between both the accused whose presence was
30 parties. The learned trial Judge, established.
however, found that the fight
4. The High Court also held that
between the parties was not a sudden
materials on record would show that
fight and that the parties went to the
70 neither party was in peaceful
lands being armed with deadly
possession of the lands and there was
35 weapons and each party had an
a scramble for the possession. The
intention to fight with the other. Then
High Court also having examined the
the trial court proceeded to consider

145
 evidence of ASI, PW 5 observed that that death would be caused to the
both parties were prepared for a fight members of the other party and still
and that members of the prosecution continued to be the members of the
party went to the place of occurrence 40 unlawful assembly. As noted above,
5 knowing that they would meet the High Court also at one stage
opposition and likewise the accused observed that it was a free fight. In a
party also did the same thing. Having case of free fight, though to some
so observed, the High Court held that extent, they were members of the
assemblies on both sides were 45 unlawful assembly in the sense that
10 unlawful and it is immaterial which they had the object to fight with each
party began the attack. In that view other, but it would be difficult to
of the matter the High Court held that infer that each one of them shared the
the accused had no right of private same object or had the knowledge.
defence. The High Court also 50 As can be seen from the records, the
15 observed that each of the member of main object was to take possession of
the unlawful assembly would be the lands and if necessary to meet
vicariously liable by virtue of any resistance or even to fight.
application of Sec. 149 IPC. Admittedly a large number of
Thereafter the High Court proceeded 55 persons on each side went to the
20 to consider the part played by each of fields. These 14 accused persons
the accused. alone are convicted because their
presence was otherwise established
5. From the above-stated facts, it can
but while judging the common object
be seen that in spite of declaration
60 of the unlawful assembly, there
under Sec. 144 CrPC and initiation of
should be such convincing material
25 proceedings under Sec. 107 CrPC,
that members in the entire crowd
both parties heavily armed went to
formed into an unlawful assembly
the fields. To that extent, the finding
and each one of them shared a
of the High Court that both sides
65 particular common object. In the
formed into unlawful assemblies
instant case the appellants are
30 cannot be doubted. But the next and
convicted because they also gave a
most important question would be
report in the counter case and figured
whether every member of the
as witnesses. However, in inferring
unlawful assembly particularly of the
70 the common object in a case of this
accused party can be convicted under
nature, the attack on the deceased
35 Sec. 302/149 IPC on the ground that
persons and the nature of the injuries
each one of them had the knowledge
inflicted would be relevant. PW 14,

146
 the Doctor who examined deceased I death. As a matter of fact, deceased 2
found only eight injuries. The first died on November 29, 1974 in the
injury was a perforated wound on the 40 evening.
right side of the back and two
6. Learned counsel appearing for the
5 injuries were on the left side of the
appellants submitted that the accused
chest. There was a deep perforated
had right of private defence to defend
wound in the heart on the left side of
the property as well as their persons.
the chest. The other injuries were not
45 In view of the findings of both the
very serious. On disSec., the Doctor
courts below that neither party was in
10 found the fracture of the left tibia, a
peaceful possession of the lands in
deep perforated wound in the heart
dispute and that there was a scramble
and injury to the lung. He opined that
for possession and that both parties
the two injuries to the heart and lung
50 were prepared for a fight and in fact
were fatal and that other injuries
fought, the accused cannot have a
15 were not either individually or
right of private defence. In such a
collectively sufficient to cause death
free fight, the question of one party
in the ordinary course of nature. It
being aggressor may not arise.
can thus be seen that only two
55 However, the members of each party
injuries inflicted by the accused
would be members of the unlawful
20 persons were of serious nature which
assembly with the common object to
would indicate the nature of the
fight. But the nature of the
attack and the object of the unlawful
participation, the weapons used and
assembly. If all the convicted
60 the injuries caused would also be
accused shared the common object,
relevant to infer the nature of the
25 one would expect many more
common object. In the instant case, it
injuries. Of course, we are not laying
is not safe to hold that the common
down that every member of the
object of the unlawful assembly was
unlawful assembly should participate
65 to commit murder and that everyone
in the actual occurrence but we are
knew that and that the same would
30 applying these tests only in view of
attract Sec. 302 IPC. But under the
the fact that the object of the
circumstances the accused armed
unlawful assembly was only to fight.
with deadly weapons formed into an
Likewise on deceased 2, PW 12,
70 unlawful assembly with a view to
another Doctor found only seven
fight with the other side and attacked
35 injuries and that only one injury on
them. One of the deceased received
the stomach was sufficient in the
two fatal injuries and the other
ordinary course of nature to cause

147
 deceased received only one fatal
injury. In such circumstances, the
members of the unlawful assembly
must be held to have knowledge that 35
5 some of them are likely to cause
injuries and thereby likely to cause
death. In other words, they had the
knowledge that at least an offence of
culpable homicide was likely to be
10 committed. Under these
circumstances they can safely be 40
convicted under Sec. 304 Part 11
read with 149 IPC. Accordingly the
conviction of the appellants under
15 Sec. 302/149 and the sentence of
imprisonment for life awarded
thereunder are set aside. Instead they
are convicted under Sec. 304 Part II
45
read with 149 IPC and each of them
20 is sentenced to undergo seven years'
RI. Other convictions and sentences
are confirmed. Subject to this
modification, the appeal is dismissed.

25 50

30 55

148
 19. unconstitutional as violative of
Article 21 of' the Constitution. It is
Smt. Gian Kaur v. State of Punjab
urged that ‘right to die’ being
(1996) 2 SCC 648 ; 1994 Crl.J
included in Article 21 of the
1660(SC)
40 Constitution as held in P. Rathinam
5 J.S. VERMA, J. declaring Sec.. 309, IPC to be
1. Leave granted in special leave unconstitutional, any person abetting
petitions. the commission of suicide by another
is merely assisting in the
2. The appellants Gian Kaur and her 45 enforcement of the fundamental right
husband Harbans Singh were under Article 21; and, therefore,
10 convicted by the Trial Court under Sec..306. IPC penalizing assisted
Sec.. 306, Indian Penal Code, 1860 suicide is equally violative of Article
(for short "IPC") and each sentenced 21. This argument, it is urged, is
to six years R.I. and fine of Rs. 50 alone sufficient to declare that Sec..
2,000/-, or, in default, further R.I. for 306, IPC also is unconstitutional
15 nine months, for abetting the being violative of Article 21 of the
commission of suicide by Kulwant Constitution.
Kaur. On appeal to the High Court,
the conviction of both has been 4. One of the points directly raised is
maintained but the sentence of Gian 55 the inclusion of the `right to die'
20 Kaur alone has been reduced to R.I. within the ambit of Article 21 of the
for three years. These appeals by Constitution, to contend that any
special leave are against their person assisting the enforcement of
conviction and sentence under Sec.. the `right to die' is merely assisting in
306, IPC. 60 the enforcement of the fundamental
right under Article 21 which cannot
25 3. The conviction of the appellants be penal; and Sec.. 306, IPC making
has been assailed, inter alia, on the that act punishable, therefore,
ground that Sec.. 306, IPC is violates Article 21. In view of this
unconstitutional. The first argument 65 argument based on the decision in P.
advanced to challenge the Rathinam, a reconsideration of that
30 constitutional validity of Sec.. 306, decision is inescapable.
IPC rests on the decision in P.
Rathinam v. Union of India [(1994) 3 5. In view of the significance of this
SCC 394] by a Bench of two learned contention involving a substantial
Judges of this Court wherein Sec.. 70 question of law as to the
35 309, IPC has been held to be interpretation of Article 21 relating to

149
 the constitutional validity of Sec.. invalidity of Sec.. 309, IPC only on
306, I.P.C. which requires the ground of violation of Article 14
reconsideration of their decision in and not Article 21. Shri B.S. Malik
P.Rathinam, the Division Bench 40 contended that Sec..309 is violative
5 before which these appeals came up of Articles 14 and 21. He strongly
for hearing has referred the matter to relied on the ground based on Article
a Constitution Bench for deciding the 21 in P. Rathinam for holding
same. This is how the matter comes Sec..309 to be invalid. He urged that
before the Constitution Bench. 6. In 45 “right to die” being included within
10 addition to the learned counsel for the ambit of Article 21, assistance in
the parties the learned Attorney commission of suicide cannot be an
General of India who appeared in offence and, therefore, Sec.. 306 IPC
response to the notice, we also also is violative of Article 21. He
requested Shri Fali S. Nariman and 50 contended that Sec.. 306 is
15 Shri Soli J. Sorabjee, Senior unconstitutional for this reason alone.
Advocates to appear as amicus curiae Shri S.K. Gambhir appearing in one
in this matter. All the learned of the connected matters did not
counsels appearing before us have advance any additional argument. 9.
rendered great assistance to enable us 55 The learned Attorney General
20 to decide this ticklish and sensitive contended that Sec.. 306 IPC
issue. 7. We may now refer to the constitutes a distinct offence and can
submissions of the several learned exist independently of Sec..309 IPC.
counsel who ably projected the The learned Attorney General did not
different points of view. 60 support the decision in P. Rathinam
and the construction made of Article
25 8. Shri Ujagar Singh and Shri B.S.
21 therein to include the “right to
Malik appeared in these matters for
die”. Shri F.S. Nariman submitted
the appellants to support the
that Sec..306 and Sec..309 constitute
challenge to the constitutional
65 independent substantive offences and
validity of Sec.. 306 and Sec..309,
Sec..306 can exist independently of
30 IPC. Both the learned counsels
Sec..309. Shri Nariman then
contended that Sec.. 306 as well as
contended that the desirability of
Sec.. 309 are unconstitutional. Both
deleting Sec..309 from the IPC is
of them relied on the decision in P.
70 different from saying that it is
Rathinam. However, Shri Ujagar
unconstitutional. He also submitted
35 Singh supported the conclusion in P.
that the debate on euthanasia is not
Rathinam of the constitutional
relevant for deciding the question of

150
 constitutional validity of Sec..309. therefore, it must be held to be
He submitted that Article 21 cannot violative of Article 14 of the
be construed to include within it the 40 Constitution. Shri Sorabjee's
so called 'right to die' since Article 21 argument, therefore, is that Sec.. 306,
5 guarantees protection of life and IPC must be upheld as constitutional
liberty and not its extinction. He but Sec.. 309 should be held as
submitted that Sec..309 does not unconstitutional, not as violative of
violate even Article 14 since the 45 Article 21 as held in P. Rathinam but
provision of sentence therein gives being violative of Article 14 of the
10 ample discretion to apply that Constitution. He also sought
provision with compassion to an assistance from Article 21 to support
unfortunate victim of circumstances the argument based on Article 14.
attempting to commit suicide. Shri
50 10. At this stage, it would be
Nariman referred to the reported
appropriate to refer to the decisions
15 decisions to indicate that the
wherein the question of
enforcement of this provision by the
constitutional validity of Sec..309,
courts has been with compassion to
IPC was considered.
ensure that it is not harsh in
operation. Shri Nariman submitted 55 11. Maruti Shripati Dubal v. State of
20 that the decision in P. Rathinam Maharashtra [(1987) Cri.L.J. 743] is
requires reconsideration as it is the decision by a Division Bench of
incorrect. Shri Soli J. Sorabjee the Bombay High Court. In that
submitted that Sec..306 can survive decision, P.B.Sawant, J., as he then
independently of Sec..309, IPC as it 60 was, speaking for the Division Bench
25 does not violate either Article 14 or held that Sec..309 IPC is violative of
Article 21. Shri Sorabjee did not Article 14 as well as Article 21 of the
support the construction made of Constitution. The provision was held
Article 21 in P. Rathinam to include to be discriminatory in nature and
therein the 'right to die' but he 65 also arbitrary so as to violate the
30 supported the conclusion that Sec.. equality guaranteed by Article 14.
309 is unconstitutional on the ground Article 21 was construed to include
that it violates Article 14 of the the ‘right to die’, or to terminate
Constitution. Shri Sorabjee submitted one's own life. For this reason, it was
that it has been universally 70 held to violate Article 21 also.
35 acknowledged that a provision to 12. State v. Sanjay Kumar Bhatia
punish attempted suicide is [(1985) Cri.L.J. 931] is the decision
monstrous and barbaric and,

151
 of the Delhi High Court. Sachar, J., Constitution. The earlier decisions of
as he then was, speaking for the the Bombay High Court and the
Division Bench said that the Andhra Pradesh High Court were
continuance of Sec.. 309 IPC is an 40 considered and agreement was
5 anachronism unworthy of human expressed with the view taken by the
society like ours. However, the Andhra Pradesh High Court as
question of its constitutional validity regards Sec..309 qua Article 14. The
with reference to any provision of the decision then proceeds to consider
Constitution was not considered. 45 the challenge with reference to
10 Further consideration of this decision Article 21 of the Constitution. It was
is, therefore, not necessary. held that Article 21 has enough
positive content in it so that it also
13. Chenna Jagadeeswar v. State of
includes the 'right to die' which
Andhra Pradesh [1988 Cr.L.J.549] is
50 inevitably leads to the right to
the decision by a Division Bench of
commit suicide. Expressing
15 the Andhra Pradesh High Court. The
agreement with the view of the
challenge to the constitutional
Bombay High Court in respect of the
validity of Sec.. 309 IPC was
content of Article 21, it was held as
rejected therein. The argument that
55 under: Keeping in view all-the above,
Article 21 includes the ‘right to die’
we state that right to live of which
20 was rejected. It was also pointed out
Article 21 speaks of can be said to
by Amarethwari, J. speaking for the
bring in its trail the right not to live a
Division Bench that the Courts have
forced life. The conclusion of the
sufficient power to see that
60 discussion was summarized as under:
unwarranted harsh treatment or
On the basis of what has been held
25 prejudice is not meted out to those
and noted above, we state that
who need care and attention. This
Sec..309 of the Penal Code deserves
negatived the suggested violation of
to be effaced from the statute book to
Article 14.
65 humanize our penal laws. It is a cruel
14. The only decision of this Court is and irrational provision, and it may
30 P.Rathinam by a Bench of two result in punishing a person again
learned Judges. Hansaria, J. speaking (doubly) who has suffered agony and
for the Division Bench rejected the would be undergoing ignominy
challenge to the constitutional 70 because of his failure to commit
validity of Sec..309 based on Article suicide. Then an act of suicide cannot
35 14 but upheld the challenge on the be said to be against religion,
basis of Article 21 of the morality or public policy, and an act

152
 of attempted suicide has no baneful the gist of this logic and was made
effect on society. Further, suicide or taking into account all these aspects.
attempt to commit it causes no harm The relevant extract is, as under:
to others, because of which State's 40 16.31 Sec.. 309 penalizes an attempt
5 interference with the personal liberty to commit suicide. It may be
of the persons concerned is not called mentioned that suicide was regarded
for. We, therefore, hold that Sec..309 as permissible in some circumstances
violates Article 21, and so, it is void. in ancient India. In the Chapter on
May it be said that the view taken by 45 "The hermit in the forest", Manu's
10 us would advance not only the cause Code (See: Laws of Manu, translated
of humanization, which is a need of by George Buhler, Sacred Books of
the day, but of globalization also, as the East edited by F.Max Muller,
by effacing Sec..309, we would be (1967 Reprint) Vol.25, page 204,J
attuning this part of our criminal law 50 Shlokas 31 ad 32) says – ‘31. Or let
15 to the global wavelength. (Page 429) him walk, fully determined and
going straight on, in a north-easterly
15. At this stage it may be mentioned
direction, subsisting on water and air,
that reference has been made in
until his body sinks to rest. 32. A
P.Rathinam and the Bombay High
55 Brahmana having got rid of his body
Court decision to the debate relating
by one of those modes (i.e.
20 to euthanasia, the sociological and
drowning, precipitating burning or
psychological factors contributing to
starving) practiced by the great sages,
suicidal tendencies and the global
is exalted in the world of Brahamana,
debate on the desirability of not
60 free from sorrow and fear.’ Two
punishing 'attempt to commit
commentators of Manu, Govardhana
25 suicide'. The absence of provisions to
and Kulluka (See Medhatithi's
punish attempted suicide in several
commentary on Manu), say that a
jurisdictions has also been noticed.
man may undertake the maha
The desirability of attempted suicide
65 prasthana (great departure) on a
not being made a penal offence and
journey which ends in death, when
30 the recommendation of the Law
he is incurably diseased or meets
Commission to delete Sec..309 from
with a great misfortune, and that,
the Indian Penal Code has also been
because it is taught in the Sastras, it
adverted to. We may refer only to the
70 is not opposed to the Vedic rules
recommendation contained in the
which forbid suicide (See : Laws of
35 42nd Report (1971) of the Law
Manu, translated by George Buhler,
Commission of India which contains
Sacred Books of the East edited by

153
 F.Max Muller, (1967 Reprint) punishable at all. Opinion was more
Vol.25, page 204, footnote 31). To or less equally divided. We are,
this Max Muller adds a note as 40 however definitely of the view that
follows: - (See: Ibid) From the the penal Provision is harsh and
5 parallel passage of Apastambha II, unjustifiable and it should be
23, 2, it is, however, evident that a repealed." (emphasis supplied)
voluntary death by starvation was
16. A Bill was introduced in 1972 to
considered the befitting conclusion of
45 amend the Indian Penal Code by
a hermit's life. The antiquity and
deleting Sec..309. However, the Bill
10 general prevalence of the practice
lapsed and no attempt has been made
may be inferred from the fact that the
as yet to implement that
Jaina ascetics, too, consider it
recommendation of the Law
particularly meritorious. 16.32
50 Commission.
Looking at the offence of attempting
15 to commit suicide, it has been 17. The desirability of retaining Sec..
observed by an English writer: (See: 309 in the statute is a different matter
H.Romilly Fedden: Suicide (London, and non sequitur in the context of
1938), page 42). It seems a constitutional validity of that
monstrous procedure to inflict further 55 provision which has to be tested with
20 suffering on even a single individual reference to some provision in the
who has already found life so Constitution of India. Assuming for
unbearable, his chances of happiness this purpose that it may be desirable
so slender, that he has been willing to to delete Sec.. 309 from the Indian
face pain and death in order to cease 60 Penal Code for the reasons which led
25 living. That those for whom life is to the recommendation of the Law
altogether bitter should be subjected Commission and the formation of
to further bitterness and degradation that opinion by persons opposed to
seems perverse legislation. Acting on the continuance of such a provision,
the view that such persons deserve 65 that cannot be a reason by itself to
30 the active sympathy of society and declare Sec.. 309 unconstitutional
not condemnation or punishment, the unless it is held to be violative of any
British Parliament enacted the specific provision in the Constitution.
Suicide Act in 1961 whereby attempt For this reason, challenge to the
to commit suicide ceased to be an 70 constitutional validity of Sec.. 309
35 offence. We included in our has been made and is also required to
Questionnaire the question whether be considered only with reference to
attempt to commit suicide should be Articles 14 and 21 of the

154
 Constitution. We, therefore, proceed Rathinam that logically it must
now to consider the question of follow that right to live would
constitutional validity with reference include right not to live, i.e., right to
to Articles 14 and 21 of the 40 die or to terminate one's life. Having
5 Constitution. Any further reference concluded that Article 21 includes
to the global debate on the also the right to die, it was held that
desirability of retaining a penal Sec.. 309. IPC was violative of
provision to punish attempted suicide Article 21. This is the only basis in P.
is unnecessary for the purpose of this 45 Rathinam to hold that Sec.. 309, IPC
10 decision. Undue emphasis on that is unconstitutional.
aspect and particularly the reference
'Right to die' - Is it included in
to euthanasia cases tends to befog the
Article 21?
real issue of the constitutionality of
the provision and the crux of the 19. The first question is: Whether,
15 matter which is determinative of the 50 the scope of Article 21 also includes
issue. the 'right to die’? Article 21 is as
under: Article 21 21. Protection of
18. In P. Rathinam it was held that
life and personal liberty: No person
the scope of Article 21includes the
shall be deprived of his life or
'right to die'. P. Rathinam held that
55 personal liberty except according to
20 Article 21 has also a positive content
procedure established by law." 20. A
and is not merely negative in its
significant part of the judgment in P.
reach. Reliance was placed on certain
Rathinam on this aspect is as under:
decisions to indicate the wide ambit
If a person has a right to live,
of Article 21 wherein the term life'
60 question is whether he has right not
25 does not mean 'mere animal
to live. The Bombay High Court
existence' but right to live with
stated in paragraph 10 of its
human dignity' embracing quality of
judgment that as all the fundamental
life. Drawing analogy from the
rights are to be read together, as held
interpretation of freedom of speech
65 in R.C. Cooper v. Union of India
30 and expression' to include freedom
[(1970) 1 SCC 248] what is true of
not to speak, freedom of association
one fundamental right is also true of
and movement' to include the
another fundamental right. It was
freedom not to join any association
then stated that is not, and cannot be,
or to move anywhere, freedom of
70 seriously disputed that fundamental
35 businesses’ to include freedom not to
rights have their positive as well as
do business, it was held in P.
negative aspects. For example,

155
 freedom of speech and expression 19, one may refuse to live, if his life
includes freedom not to speak. be not according to the person
Similarly, the freedom of association concerned worth living or if the
and movement includes freedom not richness and fullness of life were not
5 to join any association or move 40 to demand living further. One may
anywhere. So too, freedom of rightly think that having achieved all
business includes freedom not to do worldly pleasures or happiness, he
business. It was, therefore, stated that has; something to achieve beyond
logically it must follow that the right this life. This desire for communion
10 to live will include right not to live, 45 with God may very rightly lead even
i.e., right to die or to terminate one’s a very healthy mind to think that he
life. Two of the above named and would forego his right to live and
critics of the Bombay judgment have would rather choose not to live. In
stated that the aforesaid analogy is any case, a person cannot be forced
15 "misplaced", which could have arisen 50 to enjoy right to life to his detriment,
on account of superficial comparison disadvantage or disliking.
between the freedoms, ignoring the
Keeping in view all the above, we
inherent difference between one
state that right to live of which
fundamental right and, the other. It
Article 21 speaks of can be said to
20 has been argued that the negative
55 bring in its trail the right not to live a
aspect of the right to live would
forced life. In this context, reference
mean the end or extinction of the
may be made to what Alan A. Stone,
positive aspect, and so, it is not the
while serving as Professor of Law
suspension as such of the right as is
and Psychiatry in Harvard University
25 in the case of 'silence' or 'non-
60 stated in his 1987 Jonas Robitscher
association' and 'no movement'. It has
Memorial Lecture in Law and
also been stated that the right to life
Psychiatry, under the caption ‘The
stands on different footing from other
Right to Die: New Problems for Law
rights as all other rights are derivable
and Medicine and Psychiatry’. (This
30 from the right to live. The aforesaid
65 lecture has been printed at pp.627 to
criticism is only partially correct
643 of Emory Law Journal, Vol.37,
inasmuch as though the negative
1988). One of the basic theories of
aspect may not be inferable on the
the lecture of Professor Stone was
analogy of the rights conferred by
that right to die inevitably leads to
35 different clauses of Article
70 the right to commit suicide."
(emphasis supplied) (Pages 409-410)

156
 21. From the above extract, it is clear to be borne in mind when making the
that in substance the reason for that comparison for the application of this
view is, that if a person has a right to 40 principle.
live, he also has a right not to live.
22. When a man commits suicide he
5 The decisions relied on for taking
has to undertake certain positive
that view relate to other fundamental
overt acts and the genesis of those
rights which deal with different
acts cannot be traced to, or be
situations and different kind of
45 included within the protection of the
rights. In those cases, the
'right to life' under Article 21. The
10 fundamental right is of a positive
significant aspect of 'sanctity of life'
kind, for example, freedom of
is also not to be overlooked. Article
speech, freedom of association,
21 is a provision guaranteeing
freedom of movement, freedom of
50 protection of life and personal liberty
business etc. which were held to
and by no stretch of imagination can
15 include the negative aspect of there
extinction of life be read to be
being no compulsion to exercise that
included in ‘protection of life'.
right by doing the guaranteed
Whatever may be the philosophy of
positive act. Those decisions merely
55 permitting a person to extinguish his
held that the right to do an act
life by committing suicide, we find it
20 includes also the right not to do an
difficult to construe Article 21 to
act in that manner. It does not flow
include within it the right to die as a
from those decisions that if the right
part of the fundamental right
is for protection from any intrusion
60 guaranteed therein. 'Right to life' is a
thereof by others or in other words
natural right embodied in Article 21
25 the right has the negative aspect of
but suicide is an unnatural
not being deprived by others of its
termination or extinction of life and,
continued exercise e.g. the right to
therefore, incompatible and
life or personal liberty, then the
65 inconsistent with the concept of right
converse positive act also flows there
to life. With respect and in all
30 from to permit expressly its
humility, we find no similarity in the
discontinuance or extinction by the
nature of the other rights, such as the
holder of such right. In those
right to freedom of speech etc. to
decisions it is the negative aspect of
70 provide a comparable basis to hold
the right that was invoked for which
that the 'right to life' also includes the
35 no positive or overt act was required
'right to die'. With respect, the
to be done by implication. This
comparison is inapposite, for the
difference in the nature of rights has

157
 reason indicated in the context of of death including a dignified
Article 21. The decisions relating to procedure of death. In other words,
other fundamental rights wherein the this may include the right of a dying
absence of compulsion to exercise a 40 man to also die with dignity when his
5 right was held to be included within life is ebbing out. But the 'right to
the exercise of that right, are not die' with dignity at the end of life is
available to support the view taken in not to be confused or equated with
P. Rathinam qua Article 21. the right to die an unnatural death
45 curtailing the natural span of life.
23. To give meaning and content to
10 the word 'life' in Article 21, it has 25. A question may arise, in the
been construed as life with human context of a dying man, who is,
dignity. Any aspect of life which terminally ill or in a persistent
makes it dignified may be read into it vegetative state that he may be
but not that which extinguishes it and 50 permitted to terminate it by a
15 is, therefore, inconsistent with the premature extinction of his life in
continued existence of life resulting those circumstances. This category of
in effacing the right itself. The ‘right cases may fall within the ambit of the
to die’, if any, is inherently 'right to die' with dignity as a part of
inconsistent with the ‘right to life’ as 55 right to live with dignity, when death
20 is ‘death’ with ‘life’. due to termination of natural life is
certain and imminent and the process
24. Protagonism of euthanasia on the
of natural death has commenced.
view that existence in persistent
These are not cases of extinguishing
vegetative state (PVS) is not a benefit
60 life but only of accelerating
to the patient of a terminal illness
conclusion of the process of natural
25 being unrelated to the principle of
death which has already commenced.
'sanctity of life' or the right to live
The debate even in such cases to
with dignity' is of no assistance to
permit physician assisted termination
determine the scope of Article 21 for
65 of life is inconclusive. It is sufficient
deciding whether the guarantee of
to reiterate that the argument to
30 ‘right to life’ therein includes the
support the view of permitting
‘right to die’. The right to life'
termination of life in such cases to
including the right to live with
reduce the period of suffering during
human dignity would mean the
70 the process of certain natural death is
existence of such a right upto the end
not available to interpret Article 21 to
35 of natural life. This also includes the
right to a dignified life upto the point

158
 include therein the right to curtail the Constitution. In substance, the
natural span of life. argument of Shri Ujagar Singh, Shri
B.S. Malik and Shri Soli J. Sobrajee
26. We are, therefore, unable to
on this point is that it is a monstrous
concur with the interpretation of
40 and barbaric provision which violates
5 Article 21 made in P. Rathinam. The
the equality clause being
only reason for which Sec.. 309 is
discriminatory and arbitrary. It was
held to be violative of Article 21 in
contended that attempted suicide is
P. Rathinam does not withstand legal
not punishable in any other civilized
scrutiny. We are unable to hold that
45 society and there is a strong opinion
10 Sec..309 I.P.C. is violative of Article
against the retention of such a penal
21.
provision which led the Law
27. The only surviving question for Commission of India also to
consideration now is whether recommend its deletion. Shri
Sec..309 IPC is violative of Article 50 Sorabjee contended that the wide
15 14, to support the conclusion reached amplitude of Article 14 together with
in P.Rathinam. the right to live with dignity included
28. The basis of the decision in P. in Article 21, renders Sec.. 309
Rathinam, discussed above, was not unconstitutional. It is in this manner,
supported by any of the learned 55 invoking Article 21 limited to life
20 counsel except Shri B.S. Malik. On with dignity (not including therein
the basis of the decision in the right to die) that Shri Sorabjee
P.Rathinam it was urged that Sec.. refers to Article 21 along with Article
306 also is violative of Article 21, as 14 to assail the validity of Sec.. 309,
mentioned earlier. On the view we 60 IPC. The conclusion reached in P.
25 have taken that Article 21 does not Rathinam is supported on this
include the right to die' as held in P. ground.
Rathinam, the first argument to 30. We have formed the opinion that
challenge the constitutional validity there is no merit in the challenge
of Sec.. 306, IPC also on that basis 65 based even on Article 14 of the
30 fails, and is rejected. Constitution. The contention based
Article 14 - Is it violated by Sec.. on Article 14 was rejected in P.
309, I.P.C.? Rathinam also. It was held therein as
under: The Bombay High Court held
29. We would now consider the 70 Sec..309 as violation of Article 14
constitutional validity of Sec.. 309 also mainly because of two reasons.
35 with reference to Article 14 of the
159
 First, which act or acts in series of definition, as has been given in the
acts will constitute attempt to aforesaid Webster's Dictionary.
suicide, where to draw the line, is not 40 Further, on a prosecution being
known – some attempts may be launched it is always open to an
5 serious while others non serious. It accused to take the plea that his act
was stated that in fact philosophers, did not constitute suicide where-upon
moralists and sociologists were not the court would decide this aspect
agreed upon what constituted suicide. 45 also. In so far as treating of different
The want of plausible definition or attempts to commit suicide by the
10 even guidelines, made Sec..309 same measure is concerned, the same
arbitrary as per the learned Judges. also cannot be regarded as violative
Another reason given was that of Article 14, inasmuch as the nature,
Sec..309 treats all attempts to commit 50 gravity and extent of attempt may be
suicide by the same measure without taken care of by tailoring the
15 referring to the circumstances in sentence appropriately. It is worth
which attempts are made. The first of pointing out that Sec.. 309 has only
the aforesaid reasons is not sound, provided the maximum sentence
according to us, because whatever 55 which is up to one year. It provides
differences there may be as to what for imposition of fine only as a
20 constitutes suicide, there is no doubt punishment. It is this aspect which
that suicide is intentional taking of weighed with the Division Bench of
one's life, as stated at p.1521 of Andhra Pradesh High Court in its
Encyclopedia of Crime and Justice, 60 aforesaid decision to disagree with
Vol. IV, 1983 Edn. Of course, there the Bombay view by stating that in
25 still exists difference among suicide certain cases even Probation of
researchers as to what constitutes Offenders Act can be pressed into
suicidal behavior, for example, service, whose Sec.. 12 enables the
whether narcotic addiction, chronic 65 court to ensure that no stigma or
alcoholism, heavy cigarette smoking, disqualification is attached to such a
30 reckless driving, other risk-taking person. … We agree with the view
behaviors are suicidal or not. It may taken by the Andhra Pradesh High
also be that different methods are Court as regards Sec.. 309 qua
adopted for committing suicide, for 70 Article 14. (Page 405) (emphasis
example, use of fire-arm, poisoning supplied) With respect, we are in
35 especially by drugs, overdoses, agreement with the view so taken qua
hanging, inhalation of gas. Even so, Article 14, in P. Rathinam.
suicide is capable of a broad

160
 31. We have already stated that the Goa 138; Phulbhai v. State of
debate on the desirability of retaining Maharashtra, 1976 Cr.L.J. 1519;
such a penal provision of punishing 40 Maharani v. State of M.P., AIR 1981
attempted suicide, including the SC 1776; Rukhmina Devi v. State of
5 recommendation for its deletion by U.P., 1988 Cr.L.J. 548. The above
the Law Commission are not quoted discussion in P. Rathinam qua
sufficient to indicate that the Article 14 is sufficient to reject the
provision is unconstitutional being 45 challenge based on Article 14.
violative of Article 14. Even if those
33. We may briefly refer to the aid of
10 facts are to weigh, the severity of the
Article 21 sought by Shri Sorabjee to
provision is mitigated by the wide
buttress the challenge based on
discretion in the matter of sentencing
Article 14. We have earlier held that
since there is no requirement of
50 right to die is not included in the
awarding any minimum sentence and
`right to life' under Article 21. For
15 the sentence of imprisonment is not
the same reason, right to live with
even compulsory. There is also no
human dignity cannot be construed to
minimum fine prescribed as
include within its ambit the right to
sentence, which alone may be the
55 terminate natural life, at least before
punishment awarded on conviction
commencement of the natural
20 under Sec..309, IPC. This aspect is
process of certain death. We do not
noticed in P. Rathinam for holding
see how Article 21 can be pressed
that Article 14 is not violated. 32.
into service to support the challenge
The reported decisions show that
60 based on Article 14. It cannot,
even on conviction under Sec.. 309,
therefore, be accepted that Sec..309
25 IPC, in practice the accused has been
is violative either of Article 14 or
dealt with compassion by giving
Article 21 of the Constitution.
benefit under the Probation of
Offenders Act, 1958 or Sec.. 562 of 34. It follows that there is no ground
the Code of Criminal Procedure, 65 to hold that Sec..309, IPC is
30 1908 corresponding to Sec.. 360 of constitutionally invalid. The contrary
the Criminal Procedure Code, 1973 : view taken in P. Rathinam on the
Barkat v. Emperor, AIR 1934 Lah. basis of the construction made of
514; Emperor v. Dwarka Pooja, 14 Article 21 to include therein the right
Bom.L.R. 146; Emperor v. Dhirajia, 70 to die cannot be accepted by us to be
35 AIR 1940 All 486; Ram Sunder v. correct. That decision cannot be
State of Uttar Pradesh, AIR 1962 All. supported even on the basis of
262; Valentino v. State, AIR 1967 Article 14. It follows that Sec.. 309,

161
 IPC is not to be treated as Sec..309 punishes attempt to commit
unconstitutional for any reason. suicide. Abetment of attempt to
Validity of Sec.. 306 I.P.C. commit suicide is outside the
purview of Sec..306 and it is
35. The question now is whether
40 punishable only under Sec..309 read
5 Sec.. 306, IPC is unconstitutional for
with Sec..107, IPC. In certain other
any other reason. In our opinion, the
jurisdictions, even though attempt to
challenge to the constitutional
commit suicide is not a penal offence
validity of Sec.. 309, IPC having
yet the abettor is made punishable.
been rejected, no serious challenge to
45 The provision there provides for the
10 the constitutional validity of Sec..
punishment of abetment of suicide as
306 survives. We have already
well as abetment of attempt to
rejected the main challenge based on
commit suicide. Thus, even where
P. Rathinam on the ground that ‘right
the punishment for attempt to
to die’ is included in Article 21.
50 commit suicide is not considered
15 36. It is significant that Sec.. 306 desirable, its abetment is made a
enacts a distinct offence which is penal offence. In other words assisted
capable of existence independent of suicide and assisted attempt to
Sec.. 309, IPC. Sec. 306 and Sec..309 commit suicide are made punishable
read as under: 306. Abetment of 55 for cogent reasons in the interest of
20 suicide - If any person commits society. Such a provision is
suicide, whoever abets the considered desirable to also prevent
commission of such suicide, shall be the danger inherent in the absence of
punished with imprisonment of either such a penal provision. The
description for a term which may 60 arguments which are advanced to
25 extend to ten years and shall also be support the plea for not punishing the
liable to fine. person who attempts to commit
Sec..309. Attempt to commit suicide suicide do not avail for the benefit of
- Whoever attempts to commit another person assisting in the
suicide and does any act towards the 65 commission of suicide or in its
30 commission of such offence shall be attempt. This plea was strongly
punished with simple imprisonment advanced by the learned Attorney
for a term which may extend to one General as well as the amicus curiae
year or with fine, or with both. Shri Nariman and Shri Sorabjee. We
70 find great force in the submission.
37. Sec..306 prescribes punishment
35 for abetment of suicide while

162
 38. The abettor is viewed differently, liable on conviction on indictment to
inasmuch as he abets the imprisonment for a term not
extinguishment of life of another exceeding fourteen years." (emphasis
person and punishment of abetment 40 supplied) 39. This distinction is well
5 is considered necessary to prevent recognized and is brought out in
abuse of the absence of such a penal certain decisions of other countries.
provision. The Suicide Act, 1961 in The Supreme Court of Canada in
the English Law contains the relevant Rodriguez v. B.C. (A.G.) [107 D.L.R.
provisions as under: 1. Suicide to 45 (4th Series) 342] states as under:
10 cease to be a crime. – The rule of law Sanctity of life, as we will see, has
whereby it is a crime for a person to been understood historically as
commit suicide is hereby abrogated. excluding freedom of choice in the
self-infliction of death and certainly
NOTE Suicide. "Felo de se or suicide
50 in the involvement of others in
is, where a man of the age of
carrying out that choice. At the very
15 discretion, and compos mentis,
least, no new consensus has emerged
voluntarily kills himself by stabbing,
in society opposing the right of the
poison or any other way" and was a
state to regulate the involvement of
felony at common law: see 1 Hale
55 others in exercising power over
PC 411-419, This Sec.. abrogates
individuals ending their lives. (at
20 that rule of law, but, by virtue of s
page 389) 40. Airedale N.H.A. Trust
2(1) Post, a person who aids abets,
v. Bland [1993 (2) W.L.R. 316
counsels or procures the suicide or
(H.L.)] was a case relating to
attempted suicide of another is guilty
60 withdrawal of artificial measures for
of a statutory offence. The
continuance of life by a physician.
25 requirement that satisfactory
Even though it is not necessary to
evidence of suicidal intent is always
deal with physician assisted suicide
necessary to establish suicide as a
or euthanasia cases, a brief reference
cause of death is not altered by the
65 to this decision cited at the Bar may
passing of this Act : see R. v. Cardiff
be made. In the context of existence
30 Coroner, ex p Thomas [1970] 3 All
in the persistent vegetative state of no
ER 469, [1970] 1 WLR 1475. 2.
benefit to the patient, the principle of
Criminal liability for complicity in
sanctity of life, which it is the
another's suicide. – (1) A person who
70 concern of the State, was stated to be
aids, abets, counsels or procures the
not an absolute one. In such cases
35 suicide of another, or an attempt by
also, the existing crucial distinction
another to commit suicide, shall be
between cases in which a physician

163
 decides not to provide, or to continue control…. .(emphasis supplied) (at
to provide, for his patient, treatment page 368)
or care which could or might prolong
40 41. The desirability of bringing about
his life, and those in which he
such a change was considered to be
5 decides, for example, by
the function of the legislature by
administering a lethal drug, actively
enacting a suitable law providing
to bring his patient's life to an end,
therein adequate safeguards to
was indicated and it was then stated
45 prevent any possible abuse.
as under: (All ER p.867: WLR p.368)
10 But it is not lawful for a doctor to 42. The decision of the United States
administer a drug to his patient to Court of Appeals for the Ninth
bring about his death, even though Circuit in Compassion in Dying v.
that course is prompted by a State of Washington [49 F.3d 586]
humanitarian desire to end his 50 which reversed the decision of
15 suffering, however great that United States District Court. W.D.
suffering may be [see R. v. Cox Washington reported in 850 Federal
(unreported), 18 September, 1992] Supplement 1454, has also relevance.
per Ognall, J. in the Crown Court at The constitutional validity of the
Winchester. So to act is to cross the 55 State statute that banned physician
20 Rubicon which runs between on the assisted suicide by mentally
one hand the care of the living competent terminally ill adults was in
patient and on the other hand State of question. The District Court held
euthanasia -actively causing his death unconstitutional the provision
to avoid or to end his suffering. 60 punishing for promoting a suicide
25 Euthanasia is not lawful at common attempt. On appeal. that judgment
law. It is of course well known that was reversed and the constitutional
there are many responsible members validity of the provision was upheld.
of our society who believe that 43. This caution even in cases of
euthanasia should be made lawful but 65 physician assisted suicide is
30 that result could, I believe, only be sufficient to indicate that assisted
achieved by legislation which suicides outside that category have
expresses the democratic will that so no rational basis to claim exclusion
fundamental a change should be of the fundamental of sanctity of life.
made in our law. and can, if enacted, 70 The reasons assigned for attacking a
35 ensure that such legalized killing can provision which penalizes attempted
only be carried out subject to suicide are not available to the
appropriate supervision and

164
 abettor of suicide or attempted Article 21 of the Constitution is
suicide. Abetment of suicide or approved for the reasons given
attempted suicide is a distinct offence herein. The questions of
which is found enacted even in the 40 constitutional validity of Sec..306
5 law of the countries where attempted and Sec..309 I.P.C. are decided
suicide is not made punishable. accordingly, by holding that neither
Sec..306 I.P.C. enacts a distinct of the two provisions is
offence which can survive constitutionally invalid. 46. These
independent of Sec.. 309 in the I.P.C. 45 appeals would now be listed before
10 The learned Attorney General as well the appropriate Division Bench for
as both the learned amicus curiae their decision on merits in
rightly supported the constitutional accordance with law treating
validity of Sec.. 306 I.P.C. Sec..306 and Sec..309 I.P.C. to be
50 constitutionally valid.
44. The Bombay High Court in
15 Naresh Marotrao Sakbre v. Union of
India [1895 Crl.L.J. 96] considered
the question of validity of Sec..306
I.P.C. and upheld the same. No
decision holding Sec..306 I.P.C. to
20 be unconstitutional has been cited
before us. We find no reason to hold 55
either Sec..309 or Sec..306 I.P.C. to
be unconstitutional.
45. For the reasons we have given,
25 the decisions of the Bombay High
Court in Maruti Shripati Dubal v.
State of Maharashtra [1987 Crl. L.J.
743] and of a Division Bench of this 60

Court in P. Rathinam, wherein

30 Sec..309 I.P.C. has been held to be
unconstitutional, are not correct. The
conclusion of the Andhra Pradesh
High Court in Chenna Jagadeeswar
v. State of Andhra Pradesh [1988
35 Crl.L.J. 549] that Sec..309 I.P.C. is 65
not violative of either Article 14 or

165
 20. without sending the deceased.
Ultimately, P.W. 1, the father himself
Shanti v. State of Haryana AIR
went to the home of his daughter, the
1991 , SC 1226, 1990
deceased on 25th April, 1988. The
K. Jayachandra Reddy, J. – 40 two appellants misbehaved with him
5 (1) This is a case of dowry death. saying that if he was fond of his
The deceased by name of Smt. daughter he ought to have arranged
Kailash was the daughter of Hari Scooter and Television as part of the
Bhagwan, P.W. 1 of Jonala. She was dowry and he was insulted and
married to one Sat Pal of Mundhaliya 45 pushed out of the house. On 26th
10 Village about 9 kilometres away April, 1988 at about 11 p.m. P.W. 1
from Jonala. The marriage took place came to know that the deceased had
on 18th April, 1987, Sat Pal the been murdered and was cremated by
husband at. the relevant time was the two ladies with the help of
serving in the Army. His father 50 another three persons. A report was
15 namely the father-in-law of deceased given and the police could recover
was employed in Railways. Accused only bones and'ashes. After
No. 1 Smt. Shanti is the mother of investigation, the charge-sheet was
Sat Pal, and the mother~in-law of the laid.
deceased. The other appellant Smt. 55 (2.) The Additional Sessions Judge,
20 Krishna wife of the brother of Sat Pal who tried all the five accused
was another inmate. After marriage convicted the appellants under Sec.
the deceased was living in her 304B, I.P.C. and sentenced each of
matrimonial home with accused Nos. them to life imprisonment and under
1 and 2, the two appellants herein. It 60 Sec. 201, I.P.C., sentenced them to
25 is alleged that these two women were undergo imprisonment for one year
harassing the deceased all the while and to pay a fine of RSec. 2000/-
after the marriage for not bringing each and also under Sec. 498-A,
Scooter and Television as part of the I.P.C. to two years rigorous
dowry and she was treated cruelly. 65 imprisonment and to pay a fine of
30 The marriage of one Munni, a cousin RSec. 3000 / -. The sentences were
of the deceased was fixed for 30th directed to run concurrently The
April, 1988. Her brother went to other accused were acquitted. These
Mundaliya village twice for bringing two appellants preferred an appeal to
the deceased but the accused only 70 the High Court and the same was
35 taunted him and sent him away dismissed. The High Court, however,

166
 set aside the conviction under Sec.
498-A, I.P.C. The present appeal,
35
pursuant to the leave granted by this
Court, has been preferred against the
5 judgment of the High Court.
(3.) Mr. Lalit, learned counsel for the
appellants submitted that there is no
direct evidence in this case and that
all the ingredients of an offence 40
10 under Sec. 304B, I.P.C. are not made
out. According to him, it is not
conclusively proved that the two
appellants subjected the deceased to
cruelty or harassment and the very
15 fact that the High Court has acquitted
the appellants of the offence
45
punishable under Sec. 498-A would
itself indicate that the prosecution
case regarding cruelty is not accepted
20 and consequently the death cannot be
one of "dowry death". On merits, he
submitted that in the absence of clear
proof of the cause of death one
cannot presume that the death 50
25 occurred in unnatural circumstances.;

55
30

167
 21. 35 Chander and Suresh Chander,
brothers of the appellant, caught hold
Bacchan Singh V State of Punjab
of her and forcibly dragged her inside
AIR 1980 SC 898 the house where she was severely
22. beaten. Thereafter, she was kept
40 locked inside a room.
5 Om Parkash v. State of Punjab
(1962) 2 SCR 254: AIR 1961 SC 3. On June 5, 1956, she happened to
1782 RAGHUBAR DAYAL, J. – find her room unlocked, her mother-
in-law and husband away and,
1. This appeal, by special leave, is availing of the opportunity, went out
against the order of the Punjab High 45 of the house and managed to reach
10 Court dismissing the appellant’s the Civil Hospital, Ludhiana, where
appeal against his conviction under she met lady Doctor Mrs. Kumar,
Sec..307 IPC. PW 2, and told her of her sufferings.
2. Bimla Devi, PW 7, was married to The appellant and his mother went to
the appellant in October 1951. Their 50 the hospital and tried their best to
15 relations got strained by 1953 and take her back to the house, but were
she went to her brother’s place and not allowed to do so by the lady
stayed there for about a year, when Doctor. Social workers got interested
she returned to her husband’s place at in the matter and informed the
the assurance of the appellant’s 55 brother of Bimla Devi, one Madan
20 maternal uncle that she would not be Mohan, who came down to Ludhiana
maltreated in future. She was, and, after learning all facts, sent
however, ill-treated and her health information to the police station by
deteriorated due to alleged letter on June 16, 1956. In his letter
maltreatment and deliberate under- 60 he sai: My sister Bimla Devi Sharma
25 nourishment. In 1956, she was is lying in death bed. Her condition is
deliberately starved and was not very serious. I am told by her that
allowed to leave the house and only deliberate attempt has been made by
sometimes a morsel or so used to be her husband, mother-in-law and
thrown to her as alms are given to 65 brother-in-law and sister-in-law. I
30 beggars. She was denied food for was also told that she was kept
days together and used to be given locked in a room for a long time and
gram husk mixed in water after five was beaten by all the above and was
or six days. She managed to go out of starved. I therefore request that a
the house in April 1956, but Romesh 70 case may be registered and her

168
 statement be recorded, immediately. of her statement cannot be doubted.
The same day, at 9.15 p.m. Dr Miss After a careful scrutiny of her
Dalbir Dhillon sent a note to the statement, I find her allegations as to
police saying. “My patient Bimla 40 starvation, maltreatment, etc. true.
5 Devi is actually ill. She may collapse The exaggerations and omissions to
any moment”. which my attention was drawn in her
statement are inconsequential. After
4. Shri Sehgal, Magistrate, PW 9,
considering the entire evidence on
recorded her statement that night and
45 record, the learned Judge said: After
stated in his note: Blood transfusion
having given anxious thought and
10 is taking place through the right
careful consideration to the facts and
forearm and consequently the right
circumstances as emerge from the
hand of the patient is not free. It is
lengthy evidence on the record, I
not possible to get the thumb
50 cannot accept the argument of the
impression of the right hand thumb
learned counsel for the accused, that
15 of the patient. That is why I have got
the condition of acute emaciation in
her left hand thumb-impression.
which Bimla Devi was found on 5th
5. The impression formed by the of June, 1956, was not due to any
learned Judge of the High Court on 55 calculated starvation but it was on
seeing the photographs taken of account of prolonged illness, the
20 Bimla Devi a few days later, is stated nature of which was not known to the
thus in the judgment: The impression accused till Dr Gulati had expressed
I formed on looking at the two his opinion that she was suffering
photographs of Bimla was that at that 60 from tuberculosis. He further stated:
time she appeared to be suffering The story of Bimla Devi as to how
25 from extreme emaciation. Her cheeks she was ill-treated, and how, her end
appeared to be hollow. The was attempted to be brought about or
projecting bones of her body with precipitated, is convincing, despite
little flesh on them made her 65 the novelty of the method in which
appearance skeletal. The countenance the object was sought to be
30 seemed to be cadaverous. After achieved.... The conduct of the
considering the evidence of Bimla accused and of his mother on 5th of
Devi and the doctors, the learned June, 1956, when soon after Bimla
Judge came to the conclusion: So far 70 Devi’s admission in the hospital they
as the basic allegations are insisted on taking her back home, is
35 concerned, which formed the significant and almost tell-tale. It was
gravamen of the offence, the veracity not for better treatment or for any

169
 treatment that they wanted to take her being deprived of regular food in
back home. Their real object in doing pursuance of a scheme of regularly
so could be no other than to starving her in order to accelerate her
accelerate her end. 40 end, the responsibility of the
appellant for the condition to which
5 6. The appellant was acquitted of the
she was brought up to the 5th of
offence under Sec..342 IPC, by the
June, 1956, is clear. The findings
Additional Sessions Judge, who gave
really go against any suggestion that
him the benefit of doubt, though he
45 the appellant had actually provided
had come to the conclusion that
food and funds for his wife Bimla
10 Bimla Devi’s movements were
Devi.
restricted to a certain extent. The
learned Judge of the High Court 8. The next contention for the
considered this question and came to appellant is that the ingredients of an
a different conclusion. Having come 50 offence under Sec.. 307 are
15 to these findings, the learned Judge materially different from the
considered the question whether on ingredients of an offence under Sec..
these facts an offence under Sec.. 307 511 IPC. The difference is that for an
IPC, had been established or not. He act to amount to the commission of
held it proved. 55 the offence of attempting to commit
an offence, it need not be the last act
20 7. Mr. Sethi, learned counsel for the
and can be the first act towards the
appellant, has challenged the
commission of the offence, while for
correctness of this view in law. He
an offence under Sec.. 307, it is the
concedes that it is only when a
60 last act which, if effective to cause
person is helpless and is unable to
death, would constitute the offence of
25 look after himself that the person
an attempt to commit murder. The
having control over him is legally
contention really is that even if Bimla
bound to look after his requirements
Devi had been deprived of food for a
and to see that he is adequately fed.
65 certain period, the act of so depriving
Such persons, according to him, are
her does not come under Sec..307
30 infants, old people and lunatics. He
IPC, as that act could not, by itself,
contends that it is no part of a
have caused her death, it being
husband’s duty to spoon-feed his
necessary for the period of starvation
wife, his duty being simply to
70 to continue for a longer period to
provide funds and food. In view of
cause death. We do not agree with
35 the finding of the court below about
this contention.
Bimla Devi’s being confined and

170
 9. Both the sections are expressed in offence of attempting to commit a
similar language. If Sec..307 is to be particular offence, when he intends to
interpreted as urged for the appellant, 40 commit that particular offence and,
Sec..308 too should be interpreted having made preparations and with
5 that way. Whatever may be said with the intention to commit that offence
respect to Sec..307 IPC, being does an act towards its commission
exhaustive or covering all the cases and that such an act need not be the
of attempts to commit murder and 45 penultimate act towards the
Sec..511 not applying to any case of commission of that offence, but must
10 attempt to commit murder on account be an act during the course of
of its being applicable only to committing such offence. It follows
offences punishable with therefore that a person commits an
imprisonment for life or 50 offence under Sec.. 308 when he has
imprisonment, the same cannot be an intention to commit culpable
15 said with respect to the offence of homicide not amounting to murder
attempt to commit culpable homicide and in pursuance of that intention
punishable under Sec..308. An does an act towards the commission
attempt to commit culpable homicide 55 of that offence whether that act be
is punishable with imprisonment for the penultimate act or not. On a
20 a certain period and therefore but for parity of reasoning, a person
its being expressly made an offence commits an offence under Sec..307
under Sec..308, it would have fallen when he has an intention to commit
under Sec..511 which applies to all 60 murder and, in pursuance of that
attempts to commit offences intention, does an act towards its
25 punishable with imprisonment where commission irrespective of the fact
no express provisions are made by whether that act is the penultimate
the Code for the punishment of that act or not. It is to be clearly
attempt. It should follow that the 65 understood, however, that the
ingredients of an offence of attempt intention to commit the offence of
30 to commit culpable homicide not murder means that the person
amounting to murder should be the concerned has the intention to do
same as the ingredients of an offence certain act with the necessary
of attempt to commit that offence 70 intention or knowledge mentioned in
under Sec..511. We have held this Sec. 300. The intention to commit an
35 day in Abhayanand Mishra v. State offence is different from the intention
of Bihar [Criminal Appeal No. 226 of or knowledge requisite for
1959] that a person commits the constituting the act as that offence.

171
 The expression “whoever attempts to 12. The first is Queen-Empress v.
commit an offence” in Sec..511, can Nidha [(1892) ILR 14 All 38]. Nidha,
only mean “whoever: intends to do a who had been absconding, noticing
certain act with the intent or 40 certain chowkidars arrive, brought up
5 knowledge necessary for the a sort of a blunderbuss he was
commission of that offence”. The carrying, to the hip and pulled the
same is meant by the expression trigger. The cap exploded, but the
“whoever does an act with such charge did not go off. He was
intention or knowledge and under 45 convicted by the Sessions Judge
10 such circumstances that if he, by that under Sec..299 and Sec..300 read
act, caused death, he would be guilty with Sec..511, and not under
of murder” in Sec..307. This simply Sec..307 IPC, as the learned Judge
means that the act must be done with relied on a Bombay case - Regina v.
the intent or knowledge requisite for 50 Francis Cassidy [Bom HC Reps Vol.
15 the commission of the offence of IV, P. 17] - in which it was held that
murder. expression “by that act” does in order to constitute the offence of
not mean that the immediate effect of attempt to murder, under Sec.. 307
the act committed must be death. IPC, the act committed by the person
Such a result must be the result of 55 must be an act capable of causing, in
20 that act whether immediately or after the natural and ordinary course of
a lapse of time. events, death. Straight, J., both
distinguished that case and did not
10. The word “act” again, does not
agree with certain views expressed
mean only any particular, specific,
60 therein. He expressed his view thus,
instantaneous act of a person, but
at p. 43: It seems to me that if a
25 denotes, according to Sec..33 of the
person who has an evil intent does an
Code, as well, a series of acts. The
act which is the last possible act that
course of conduct adopted by the
he could do towards the
appellant in regularly starving Bimla
65 accomplishment of a particular crime
Devi comprised a series of acts and
that he has in his mind, he is not
30 therefore acts falling short of
entitled to pray in his aid an obstacle
completing the series, and would
intervening not known to himself. If
therefore come within the purview of
he did all that he could do and
Sec..307 of the Code.
70 completed the only remaining
11. Learned counsel for the appellant proximate act in his power, I do not
35 has referred us to certain cases in this think he can escape criminal
connection. We now discuss them. responsibility, and this because his

172
 own set volition and purpose having not yet committed the offence in this
been given effect to their full extent, section. A places the food on Z’s
a fact unknown to him and at table or delivers it to Z’s servants to
variance with his own belief, 40 place it on Z’s table. A has
5 intervened to prevent the committed the offence defined in this
consequences of that act which he section. A’s last act, contemplated in
expected to ensue, ensuing. Straight, this illustration, is not an act which
J. gave an example earlier which must result in the murder of Z. The
itself does not seem to fit in with the 45 food is to be taken by Z. It is to be
10 view expressed by him later. He said: served to him. It may not have been
No one would suggest that if A possible for A to serve the food
intending to fire the stack of B, goes himself to Z, but the fact remains that
into a grocery shop and buys a box of A’s act in merely delivering the food
matches, that he has committed the 50 to the servant is fairly remote to the
15 offence of attempting to fire the stack food being served and being taken by
of B. But if he, having that intent, Z.
and having bought the box of
14. This expression of opinion by
matches, goes to the stack of B and
Straight, J., was not really with
lights the match, but it is put out by a
55 reference to the offence under
20 puff of wind, and he is so prevented
Sec..307 IPC, but was with reference
and interfered with, that would
to attempts to commit any particular
establish in my opinion an attempt.
offence and was stated, not to
The last act, for the person to set fire
emphasize the necessity of
to the stack would have been his
60 committing the last act for the
25 applying a lighted match to the stack.
commission of the offence, but in
Without doing this act, he could not
connection with the culprit taking
have set fire and, before he could do
advantage of an involuntary act
this act, the lighted match is
thwarting the completion of his
supposed to have been put out by a
65 design by making it impossible for
30 puff of wind.
the offence being committed.
13. Illustration (d) to Sec..307, itself Straight, J., himself said earlier: For
shows the incorrectness of this view. the purpose of constituting an
The illustration is: A intending to attempt under Sec..307 IPC, there are
murder Z, by poison, purchases 70 two ingredients required, first, an evil
35 poison and mixes the same with food intent or knowledge, and secondly,
which remains in A’s keeping; A has an act done.

173
 15. In Emperor v. Vasudeo Balwant an attempt to murder only when one
Gogte [(1932) ILR 56 Bom 434] a has committed the last act necessary
person fired several shots at another. to commit murder. Such expressions,
No injury was in fact occasioned due 40 however, are not to be taken as
5 to certain obstruction. The culprit precise exposition of the law, though
was convicted of an offence under the statements in the context of the
Sec.. 307 IPC. Beaumont, C.J., said cases are correct.
at p. 438: I think that what Sec.. 307
17. In Mi Pu v. Emperor [(1909) 10
really means is that the accused must
45 Cri LJ 363] a person who had put
10 do an act with such a guilty intention
poison in the food was convicted of
and knowledge and in such
an offence under Sec..328 read with
circumstances that but for some
Sec..511 IPC, because there was no
intervening fact the act would have
evidence about the quantity of poison
amounted to murder in the normal
50 found and the probable effects of the
15 course of events. This is correct. In
quantity mixed in the food. It was
the present case, the intervening fact
therefore held that the accused
which thwarted the attempt of the
cannot be said to have intended to
appellant to commit the murder of
cause more than hurt. The case is
Bimla Devi was her happening to
55 therefore of no bearing on the
20 escape from the house and
question under determination.
succeeding in reaching the hospital
and thereafter securing good medical 18. In Jeetmal v. State [AIR 1950 MB
treatment. 21] it was held that an act under
Sec..307, must be one which, by
16. It may, however, be mentioned
60 itself, must be ordinarily capable of
25 that in cases of attempt to commit
causing death in the natural
murder by fire-arm, the act
ordinarily course of events. This is
amounting to an attempt to commit
what was actually held in Cassidy
murder is bound to be the only and
case and was not approved in Nidha
the last act to be done by the culprit.
65 case or in Gogte case.
30 Till he fires, he does not do any act
towards the commission of the 19. We may now refer to Rex v.
offence and once he fires, and White [(1910) 2 KB 124]. In that
something happens to prevent the case, the accused, who was indicted
shot taking effect, the offence under for the murder of his mother, was
35 Sec..307 is made out. Expressions, in 70 convicted of attempt to murder her. It
such cases, indicate that one commits was held that the accused had put

174
 two grains of cyanide of potassium in
the wine glass with the intent to
murder her. It was, however, argued
that there was no attempt at murder
5 because “the act of which he was
guilty, namely, putting the poison in
the wine glass, was a completed act 40
and could not be and was not
intended by the appellant to have the
10 effect of killing her at once; it could
not kill unless it were followed by
other acts which he might never have
done”. This contention was repelled
and it was said: There seems no 45
15 doubt that the learned Judge in effect
did tell the jury that if this was a case
of slow poisoning the appellant
would be guilty of the attempt to
murder. We are of opinion that this
20 direction was right, and that the
completion or attempted completion
50
of one of a series of acts intended by
a man to result in killing is an
attempt to murder even although this
25 completed act would not, unless
followed by the other acts, result in
killing. It might be the beginning of
the attempt, but would nonetheless
be an attempt. This supports our 55
30 view.
20. We therefore hold that the
conviction of the appellant under
Sec..307 IPC, is correct and
accordingly dismiss this appeal.
35 60

175
 23. was living on 6th Street, Lake Area,
35 Nungumbakkam, along with his wife
Machhi Singh V State of Rajasthan
and two daughters, Rama, P.W. 2
24. and Savitri, P.W. 4. The former is
Vardarajan V State of Madras older than the latter and was studying
5 AIR 1965 SC 942 in the Madras Medical College while
40 the latter was a student of the second
HIDAYATULLAH, M. year B.Sc. class in Ethiraj College.
CRIMINAL APPELLATE 2. A few months before September
JURISDICTION : Criminal Appeal 30, 1960 Savitri became friendly
No.46 of 1963. with the appellant Varadarajan who
10 Appeal by special leave from the 45 was residing in a house next door to
judgment and -order dated March 22, that of S. Natarajan. The appellant
1963, of the Madras High Court in and Savitri used to carry on
Criminal Appeal No. 114 of 1961. conversation with each other from
their respective houses. On
A. V. Viswanatha Sastry, K. Jayaram 50 September 30, 1960 Rama found
15 and R. Ganapathy lyer, for the them talking to each other in this
appellant. manner at about 9.00 A.m. and had
1. A. Ranganadham Chetty and A. V. also seen her talking like this on
Rangam, for the respondent. The some previous occasions. That day
Judgment of the Court was delivered 55 she asked Savitri why she was
20 by Mudholkar J. This is an appeal by talking with the appellant. Savitri
special leave from the judgment of replied saying that she wanted to
the High Court of Madras affirming marry the appellant. Savitri's
the conviction of the appellant under intention was communicated by
Sec. 363 of the Indian Penal Code 60 Rama to their father when lie
25 and sentence of rigorous returned home at about 11.00 A.M.
imprisonment for one year awarded on that day. Thereupon Natarajan
by the. Fifth Presidency Magistrate, questioned her. Upon being
Egmore, Madras. Savitri, P.W. 4, is questioned Savitiri started weeping
the third daughter of S. Natarajan, 65 but did not utter a word. The same
30 P.W. 1, who is an Assistant Secretary day Natarajan took Savitri to
to the Government of Madras in the Kodambakkam and left her at the
Department of Industries and Co- house of a relative of his. K.
operation. At the relevant time, he Natarajan, P.W. 6, the idea being that

176
 she should be kept as far away from acquitted by him. After the document
the appellant as possible for some was registered the appellant and
time. Savitri went to Ajanta Hotel and
40 stayed there for a day. The appellant
3. On the next day, i.e., on October 1,
purchased a couple of sarees and
5 1960 Savitri left the house of K.
blouses for Savitri the next day and
Natarajan at about 10.00 A.m. and
then they went by train to Sattur.
telephoned to the appellant asking
him to meet her on a certain road in 4. After a stay of a couple of days
that area and then went to that road 45 there, they proceeded to Sirukulam
10 herself. By the time she got there the on October 4, and stayed there for 10
appellant had arrived there in his car. or 12 days. Thereafter they went to
She got into it and both of them then Coimbatore and then on to Tanjore
went to the house of one P. T. Sami where they were found by the police
at Mylapore with a view to take that 50 who were investigating into a
15 person along with them to the complaint of kidnapping made by S.
Registrar's office to witness their Natarajan and were then brought to
marriage. After picking up Sami they Madras on November 3rd. It may be
went to the shop of Govindarajulu mentioned that as Savitri did not
Naidu in Netaji Subhas Chandra 55 return to his house after she went out
20 Bose Road and the appellant on the morning of October 1st, K.
purchased two gundus and Natarajan went to the house of S.
Tirumangalyam which were selected Natarajan in the evening and
by Savitri and then proceeded to the enquired whether she had returned
Registrar's office. Thereafter the 60 home. On finding that she had not,
25 agreement to marry entered into both these persons went to the
between the appellant and Savitri, railway station and various other
which was apparently written there, places in search of Savitri. The
was got registered.Thereafter the search having proved fruitless S.
appellant asked her to wear the 65 Natarajan went to the
30 articles of jewellery purchased at Nungumbakkam Police Station and
Naidu's shop and she accordingly did lodged a complaint stating there that
so. The agreement which these two Savitri was a minor on that day and
persons had entered into was attested could not be found. Thereupon the
by Sami as well as by one P. K. Mar, 70 police took up investigation and
35 who was a co- accused before the ultimately apprehended, as already
Presidency Magistrate but was

177
 stated, the appellant and Savitri at 35 "Whoever takes or entices any minor
Tanjore. under sixteen years of age if a male,
or under eighteen years of age if a
5. It is not disputed that Savitri was
female, or any person of unsound
born on November 13, 1942 and that
mind, out of the keeping of the
5 she was a minor on October 1st. The
40 lawful guardian of such minor or
other facts which have already been
person of unsound mind, without the
stated are also not disputed. A two-
consent of such guardian, is said to
fold contention was, however, raised
kidnap such minor or person from
and that was that in the first place
lawful guardianship."
10 Savitri had abandoned the
guardianship of her father and in the 45 7. It will thus be seen that taking or
second place that the appellant in enticing away a minor out of the
doing what he did, did not in fact keeping of a lawful guardian is an
take away Savitri out of the keeping essential ingredient of the offence of
15 of her lawful guardian. kidnapping. Here, we are not
50 concerned with enticement but what,
6. The question whether a minor can
we have to find out is whether the
abandon the guardianship of his or
part played by the appellant amounts
her own guardian and if so the
to "taking", out of the keeping of the
further question whether Savitri
lawful L2 Sup./64--3 guardian, of
20 could, in acting as she did, be said to
55 Savitri. We have no doubt that
have abandoned her father's
though Savitri had been left by S.
guardianship may perhaps not be
Natarajan at the house of his relative
very easy to answer. Fortunately,
K. Natarajan,She still continued to be
however, it is not necessary for us to
in the lawful keeping of the former
25 answer either of them upon the view
60 but then the question remains as to
which we take on the other question
what is it which the appellant did that
raised before us and that is that
constitutes in law "taking". There is
"taking" of Savitri out of the keeping
not a word in the deposition of
of her father has not been
Savitri from which an inference
30 established. The offence of
65 could be drawn that she left the
"kidnapping from lawful
house of K. Natarajan at the instance
guardianship" is defined thus in the
or even a suggestion of the appellant.
first paragraph of Sec. 361 of the
In fact she candidly admits that on
Indian Penal Code :
the morning of October 1st, she
70 herself telephoned to the appellant to

178
 meet her in his car at a certain place, accompanying the appellant all along
went up to that place and finding him is quite consistent with Savitri's own
waiting in the car got into that car of 40 desire to be the wife of the appellant
her own accord. No doubt, she says in which the desire of accompanying
5 that she did not tell the appellant him wherever he went was of course
where to go and that it was the implicit. In these circumstances we
appellant himself who drove the car find nothing from which an inference
to Guindy and then to Mylapore and 45 could be drawn that the appellant had
other places. Further, Savitri has been guilty of taking away Savitri
10 stated that she had decided to marry out of the keeping of her father. She
the appellant. There is no suggestion willingly accompanied him and the
that the appellant took her to the Sub- law did not cast upon him the duty of
Registrar's office and got the 50 taking her back to her father's house
agreement of marriage registered or even of telling her not to
15 there (thinking that this was accompany him. She was not a child
sufficient in law to make them man of tender years who was unable to
and wife) by force or blandishments think for herself but, as already
or, anything like that. On the other 55 stated, was on the verge of attaining
hand the evidence of the girl leaves majority and was capable of knowing
20 no doubt that the insistence of what was good and what was bad for
marriage came from her own side. her. She was no uneducated or un-
The appellant, by complying with her sophisticated village girl but a senior
wishes can by no stretch of 60 college student who had probably all
imagination be said to have taken her her life lived in a modern city and
25 out of the keeping,of her lawful was thus far more capable of thinking
guardian. After the registration of the for herself and acting on her own
agreement both the appellant and than perhaps an unlettered girl
Savitri lived as man and wife and 65 hailing from a rural area. The learned
visited -different places. There is no Judge of the High Court has referred
30 suggestion in Savitri's evidence, who, to the decision In re : Abdul
it may be mentioned had attained the Sathar(1) in which it was held that
age of discretion and was on the where the evidence disclosed that,
verge of attaining majority that she 70 but for something which the accused
was made by the appellant to consented to do and ultimately did, a
35 accompany him by administering any minor girl would not have left her
threat to her or by any husband's house, or would not have
blandishments. The fact of her been able to leave her husband's

179
 house, there was sufficient taking in upon which a court of fact could find
law for the purpose of Sec. 363 and against the accused. This decision,
expressing agreement with this therefore, is of little assistance in this
statement of the law observed: "In 40 case because, as already stated, every
5 this case the minor, P.W. 4, would essential step was taken by Savitri
not have left the house but for the herself : it was she who telephoned to
promise of the appellant that he the appellant and fixed the
would marry her." Quite apart from rendezvous, she walked up to that
the question whether this amounts to 45 place herself and found the appellant
10 blandishment we may point out that waiting in the car; she got into the car
this is not based upon any evidence of her own accord without the
direct or otherwise. In Abdul Sathar's appellant asking her to step in and
case (1) Srinivasa Aiyangar J., found permitted the appellant to take her
that the girl whom the accused was 50 wherever he liked. Apparently, her
15 charged with having kidnapped was one and only intention was to
desperately anxious to leave her become the appellant's wife and thus
husband's house and even threatened be in a position to be always with
to commit suicide if she was not him.
taken away from there and observed :
55 9. The learned Judge also referred to
20 8. "If a girl should have been wound a decision in R. v. Kumarasami(2)
up to such a pitch of hatred of her which was a case under Sec. 498 of
husband and of his house or the Indian Penal Code. It was held
household and she is found there that if whilst the wife was
afterwards to have gone out of the 60 living with her husband, a man
25 keeping of her husband, her knowingly went away with her in
guardian, there must undoubtedly be such a way as to deprive the husband
clear and cogent evidence to show of his control over her with the intent
that she did not leave her husband's stated in the Sec., it would be a
house herself and that her leaving 65 taking from the husband within the
30 was in some manner caused or meaning of the Sec.. (1) 54 M.L.J.
brought about by something that the 456.
accused did."
(2) 2 M. H. C. R. 331.
In the light of this observation the
It must, however, be borne in mind
learned Judge considered the
70 that there is a distinction between
35 evidence and came to the conclusion
"taking" and allowing a minor to
that there was some legal evidence

180
 accompany a person. The two taking the minor out of the keeping
expressions are not synonymous of the lawful guardian merely
though we would like to guard 40 because after she has actually left her
ourselves from laying down that in guardian's house or a house where
5 no conceivable circumstance can the her guardian had kept her, joined the
two be regarded as meaning the same accused and the accused helped her
thing for the purposes of Sec. 361 of in her design not to return to her
the Indian Penal Code. We would 45 guardian's house by taking her along
limit ourselves to a case like the with him from place to place. No
10 present where the minor alleged to doubt, the part played by the accused
have been taken by the accused could be regarded as facilitating the
person left her father's protection fulfillment of the intention of the girl.
knowing and having capacity to 50 That part, in our opinion, falls short
know the full import of what she was of an inducement to the minor to slip
15 doing voluntarily joins the accused out of the keeping of her lawful
person. In such a case we do not guardian and is, therefore, not
think that the accused can be said to tantamount to "taking".
have taken her away from the
55 10. The case before us is not of a
keeping of her lawful guardian.
kind considered by Srinivasa
20 Something more has to be shown in a
Aiyangar J., in that the facts
case of this kind and that is some
established do not show that Savitri
kind of inducement held out by the
would not have left K. Natarajan's
accused person or an active
60 house in which her father had left her
participation by him in the formation
without the active help of the
25 of the intention of the minor to leave
appellant.
the house of the guardian. It would,
however, be sufficient if the In the next decision, that is, that in
prosecution establishes that though Kumarasami's case(1) upon which
immediately prior to the minor 65 the High Court has relied, it was
30 leaving the father's protection no observed that the fact that a married
active part was played by the woman whom the accused was
accused, he had at some earlier stage alleged to have taken or enticed away
solicited or persuaded the minor to for certain purposes was a temptress,
do so. In our, opinion if evidence to 70 would make no difference and the
35 establish one of those things is accused who yielded to her
lacking it would not be legitimate to solicitations would be guilty of an
infer that the accused is guilty of offence under Sec. 498 (b) of the

181
 Penal Code. This decision was guardians' right to keep their wards
approved of in In re: Sundara Days under their care and custody; but the
Tevan (2), a case (1) 2 M. H. C. R. more important object of these
331. provisions undoubtedly is to afford
40 security and protection to the wards
5 (2) 4 M. H. C. R. 20.
themselves."
to which also the High Court has
11. While, therefore, it may perhaps
referred. The basis of both these
be argued on the basis of the two
decisions appears to be that depriving
Madras decisions that the word
the husband of his proper control
45 "taking" occurring in sSec. 497 and
10 over his wife, for the purpose of
498 of the Indian Penal Code should
illicit intercourse is the gist of the
be given a wide interpretation so as
offence of taking away a wife under
to effectuate the object underlying
the same Sec. and that detention
these provisions there is no reason
occasioning such deprivation may be
50 for giving to that word a wide
15 brought about simply by the
meaning in the context of the
influence of allurement and
provisions of Sec. 361 and cognate
blandishment. It must be borne in
Sec..
mind that while Sec. 497 and 498,
I.P.C. are meant essentially for the The last case relied upon by the High
20 protection of the rights of the 55 Court is Ramaswami Udayar v. Raju
husband,- Sec. 361 and other cognate Udayar(2) which is also a case under
Sec. of the Indian Penal Code are Sec. 498, I.P.C. In that case the High
intended more for the protection of Court has followed the two earlier
the minors and persons of unsound decisions of that Court to which we
25 mind themselves than of the rights of 60 have made reference but in the
the guardians of such persons. In this course of the judgment the learned
connection we may refer to the Judge has observed that it is not open
decision in State v. Harbansing to a minor in law to abandon her
Kisansing (1). In that case guardian, and that, therefore, when
30 Gajendragadkar J., (as he then was) 65 the minor leaves the guardian of her
has, after pointing out what we have own accord and when she comes into
said above, observed: the custody of the accused person, it
is not necessary that the latter should
"It may be that the mischief intended
be shown to have committed an overt
to be punished partly consists in the
70 act before he could be convicted
35 violation or the infringement of the

182
 under Sec. 498. The learned Judge his not doing so is no infringement of
has further observed : this Act of Parliament (24 & 25 Vict.
c. 100, Sec. 55) for the Act does not
12. "A woman's free will, or her
say he shall restore her, but only that
being a free agent, or walking out of
40 he shall not take her away."
5 her house of her own accord are
absolutely irrelevant and immaterial The jury returned a verdict of guilty
for the offence under Sec. 498." in this case because the girl's
evidence showed that the initial
(1) I.L.R. [1954] Bom 784.
formation of her intention to leave
(2) 1952 M.W.N. 604 Whatever may 45 her father's house was influenced by
10 be the position with respect to an the solicitations of the accused and
offence under that, section and even by his promise to marry her.
assuming that a minor cannot in law
The other case is Rex v. James Jarvis
abandon the guardianship of her
(2). There Jelf J., has stated the law
lawful guardian, for the reason which
50 thus to the jury :
15 we have already stated, the accused
person in whose company she is later "Although there must be a taking, yet
found cannot be held guilty of having it is quite clear that an actual physical
taken her out of the keeping of her taking away of the girl is not
guardian unless something more is necessary to render the prisoner
20 established. 55 liable to conviction; it is sufficient if
he persuaded her to leave her home
13. The view which we have taken
or go away with him by persuasion
accords with that expressed in two
or blandishments. The question for
decisions reported in Cox's Criminal
you is whether the active part in the
Cases. The first of them is Reg. v.
60 going away together was the act of
25 Christian Olifier (1). In that case
the prisoner or of the girl; unless it
Baron Bramwell stated the law of the
was that of the prisoner, he is entitled
case to the jury thus :
to your verdict. And, even if you do
"I am of opinion that if a young not believe that he did what he was
woman leaves her father's house 65 morally bound to do-namely, tell her
30 without any persuasion, inducement, to return home- that fact is not by
or blandishment held out to her by a itself sufficient to warrant a
man, so that she has got fairly away conviction : for if she was
from home, and then goes to him, determined to leave her home, and
although it may be his moral duty to 70 showed prisoner that that was her
35 return her to her parent's custody, yet
183
 determination, and insisted on solicited her to leave her father, and
leaving with him-or even if she was afterwards received and har- boured
so forward as to write and suggest to her when she did so. If a girl leaves
the prisoner that he should go away her father of her own accord, the
5 with her, and he (1) X Cox's 40 defendant taking no active part in the
Criminal Cases, 402. (2) XX Cox's matter and not persuading or
Criminal Cases, 249. advising her to leave, he cannot be
convicted of this offence, even
14. yielded to her suggestion, taking
though he failed to advise her not to
no active part in them matter, you
45 come, or to return, and afterwards
10 must acquit him. If, however,
harboured her."
prisoner's conduct was such as to
persuade the girl, by blandishments 15. On behalf of the appellant
or otherwise, to leave her home reliance was placed before us upon
either then or some future time, he the decisions in Rajappan v. State of
15 ought to be found guilty of the 50 Kerala(1) and Chathu v. Govindan
offence of abduction." Kutty (2). In both the cases the
learned Judges have held that the
In this case there was no evidence of
expression "taking out of the keeping
any solicitation by the accused at any
of the lawful guardian" must signify
time and the jury returned a verdict
55 some act done by the accused which
20 of 'not guilty'. Further, there was no
may be regarded as the proximate
suggestion that the girl was incapable
cause of the person going out of the
of thinking for herself and making up
keeping of the guardian; or, in other
her own mind.
words an act but for which the person
The relevant provisions of the Penal 60 would not have gone out of the
25 Code are similar to the provisions of keeping of the guardian as he or she
the Act of Parliament referred to in did. In taking this view the learned
that case. Judge followed, amongst other
Relying upon both these decisions decisions, the two English decisions
and two other decisions, the law in 65 to which we have adverted. More or
30 England is stated thus in Halsbury's less to the same effect is the decision
Laws of England, 3rd edition, Vol. in Nura v. Rex(3). We do not agree
10, at p. 758 : with everything that has been said in
these decisions and would make it
"The defendant may be convicted, 70 clear that the mere circumstance that
although he took no part in the actual the, act of the accused was not the
35 removal of the girl, if he previously
184
 immediate cause of the girl leaving wherein the learned Judge observed
her father's protection would not that where a minor girl voluntarily
absolve him if he had at an earlier leaves the roof of her guardian and
stage solicited her or induced her in 40 when out of his house, comes across
5 any manner to take this step. another who treats her with kindness,
he cannot be held guilty under Sec.
16. As against this Mr. Ranganadham
361, Indian Penal Code. This
Chetty appearing for the State has
decision cannot help the accused for,
relied upon the, decisions in
45 on the facts of that case, it was found
Bisweswar Misra v. The King (1)
that the girl went out of the
10 and In re : Khalandar Saheb(2). The
protection of her parents of her own
first of these decisions is
accord and thereafter went with the
distinguishable on the ground that it
accused...... In the present case it is
was found that the accused had
50 not possible to hold that she is not
induced the girl to leave the house of
under the guardianship of her father.
15 her lawful guardian. Further the
In either contingency, namely,
learned Judges have made it clear
whether she went out to answer calls
that mere passive consent on the part
of nature, or whether she went to the
of a person in giving shelter to the
55 house of the accused pursuant to a
minor does not amount to taking or
previous arrangement, she continued
20 enticing of the minor but the active
to be under the guardianship of her
bringing about of the stay of the
father. On the evidence, it is not
minor in the house of a person by
possible to hold that she abandoned
playing upon the weak and hesitating
60 the guardianship of her father and,
mind of the minor would amount to
thereafter, the accused took her with
25 "taking" within the meaning of Sec.
him."
361. In the next case, the act of the
accused, upon the facts of the case 17. After pointing out that there is an
was held by the Court to fall under essential distinction between the
Sec. 366, I.P.C. and the decision in 65 words "taking" and "enticing" it was
30 Nura v. Rex(3) on which reliance has no doubt observed that the mental
been placed on behalf of the attitude of the minor is not of
appellant is distinguished. Referring relevance in the case of taking and
to that case it was observed by the that the word "take" means to cause
Court : 70 to go, to escort or to get into
possession. But these observations
35 "Reliance is placed upon the decision
have to be understood in the context
of Mustaq Ahmed J. in Nura V. Rex

185
 of the facts found in that case. For, it
had been found that the minor girl
35
whom the accused was charged with
having (1) I.L.R. [1949] Cuttack,
5 194.
kidnapped had been persuaded by the
accused when she had gone out of
her house for answering the call of
nature, to go along with him and was 40
10 taken by him to another village and
kept in his uncle's house until she
was restored back to her father by the
uncle later. Thus, here there was an
element of persuasion by the accused
15 person which brought about the
willingness of the girl and this makes
45
all the difference. In our opinion,
therefore, neither of these decisions
is of assistance to the State.
20 We are satisfied, upon the material
on record, that no offence under Sec.
363 has been established against the
appellant and that he is, therefore,
50
entitled to acquittal. Accordingly we
25 allow the appeal and set aside the
conviction and sentence passed upon
him.
Appeal allowed.

55
30

186
 25. 35 Majra, in the district of Karnal was
the victim of the offence. According
State of Haryana v. Raja Ram –
to the prosecution story one Jai
AIR 1973 SC 819 ,DUA, I.D.
Narain, a resident of village
BENCH:DUA, I.D. SHELAT, J.M. Muradgarh, close to the village Jor
5 CHANDRACHUD, Y.V. 40 Majra, once visited the house of
Narain Dass for treating his ailing
sons, Subhas Chander and Jagjit
CRIMINAL APPELLATE Singh. When the two boys were
JURISDICTION : Cr. A. No. 21.4 of cured by Jai Narain, Narain Dass
1969. Appeal by special leave from 45 began to have great faith in him and
10 the judgment and order dated March indeed started treating him as his
18. 1969 of the Punjab & Haryana Guru. Jai Narain started paying
High Court at Chandi- garh in frequent visits to Narain Dass's house
Criminal Appeal No. 951 of 1968. and apparently began to cast an evil
50 eye on the prosecutrix. He persuaded
1. Harbans Singh and R. N. her to accompany him by inducing
15 Sachthey, for the appellant. Ram her to believe that though she was
Sarup and J. C. Talwar, for the made to work in her parents' house
respondent. The Judgment of the she was not even given proper food
Court was delivered by DUA, J.-In 55 and clothes by her parents who were
this appeal by special leave the State poor. He promised to keep her like a
20 of Haryana has assailed the judgment queen, having nice clothes to wear,
of a learned single Judge of the High, good food to eat and also a servant at
Court of Punjab & Haryana at her disposal. On one occasion Narain
Chandigarh acquitting the respondent 60 Dass happened to see Jai Narain
Raja Ram on appeal from his talking to the prosecutrix and felt
25 conviction by the Additional suspicious with the result that he
Sessions Judge, Karnal, under Sec. requested Jai Narain not to visit his
366, I.P.C. and sentence of' rigorous house any more. He also
imprisonment of 1-1/2 years with 65 reprimanded his daughter and
fine of Rs. 500/- and in default directed her not to be free with Jai
30 rigorous imprisonment for two Narain. Having been prohibited from
months. visiting Narain Dass's house, Jai
Santosh Rani, the prosecutrix, aged Narain started sending messages to
about 14 years, daughter of one 70 the prosecutrix through Raja Ram,
Narain Dass, a resident of village Jor respondent, who is a jheewar and has

187
 his house about 5 or 6 karams away 2. On the following morning, when
from that of Narain Dass. As desired Abinash Kumar, who is also
by Jai Narain, Raja Ram persuaded 40 sometimes described as Abinash
the prosecutrix to go with him to the Chander Singh, brother of the
5 house of Jai Narain. On April 4, 1968 prosecutrix, returned from the field to
Raja Ram contacted the prosecutrix feed the cattle, the prosecutrix was
for the purpose of accompanying him found missing from her bed. Abinash
to Jai Narain's house. Raja Ram's 45 had returned to the house at about 4
daughter Sona by name, who a.m. He woke up his mother and
10 apparently was somewhat friendly enquired about Santosh Rani's
with the prosecutrix went to the whereabouts. The mother replied that
latter's house and conveyed a the prosecutrix might have gone to
message that she (prosecutrix) should 50 ease herself. After waiting for about
come to the house of Raja Ram at half an hour Abinash Kumar went to
15 midnight. The prosecutrix as desired, his grandfather who used to reside in
went to Raja Ram's house on the a separate adjoining house and
night between April 4 and 5, 1968, informed him about this fact. After
when Raja Ram took her to 55 having searched for her
Bhishamwala well. Jai Narain was unsuccessfully, Abinash went to
20 not present at the well at that time. Karnal to inform his father about it.
Leaving the prosecutrix there, Raja The father and the son returned from
Ram went to bring Jai Narain, whom Karnal by about 10 a.m. The search
he brought after some time, and 60 went on till afternoon but the
handing over the prosecutrix to Jai prosecutrix was not found. The
25 Narain, Raja Ram returned to his father, after having failed in his
own house. On the fateful night it search for the missing daughter,
appears that Narain Das was not in lodged the first information report
the village, having gone to Karnal 65 (Ex. PW 1/3) with the officer in
and his wife was sleeping in the charge of the Police Station, Indri.
30 kitchen. The prosecutrix, along with "Confirmed suspicion" was cast in
her two younger sisters was sleeping this report on Jai Narain Bawa Moti
in the court-yard, her elder brother Ram, resident of Sambli, who was
(who was the eldest child) was in the 70 stated to be a bad character and
field. It was in these circumstances absent from the village. It was added
35 that the prosecutrix had gone to the in the F.I.R. that about 5 or 6 months
house of Raja Ram from where she earlier Narain Dass had prevented Jai
was taken to Bhishamwala well. Narain from visiting the former's

188
 house as a result of which the latter for 1-1/2 years and fine of Rs. 501' or
had held out a threat to the former. in default to rigorous imprisonment
On April 13, 1968 at about 7 a.m. for two months. Jai Narain was
Ram Shah, S.H.O., Police Station 40 acquitted of the charge under Sec.
5 Indri, along with three other persons 366, I.P.C. and the respondent of the
and Narain Dass, saw Jai Narain and charge under Sec. 376/109, I.P.C.
Santosh Rani coming from the side
Both the convicts appealed to the
of Dera Waswa Ram. As they
High Court of Punjab & Haryana. A
reached near Dera Ganga Singh,
45 learned single Judge of that Court
10 Narain Dass identified his daughter
dismissed the appeal of Jai Narain
and Jai Narain, accused, was taken
maintaining his conviction and
into custody. The prosecutrix had a
sentence but acquitted the respondent
jhola (ex. P-16) which contained one
Raja Ram of the charge under Sec.
suit. and a shawl and two chunis
15 which were taken into possession. 50 366. I.P.C. It is against the order of
The salwar of the, prosecutrix the respondent's acquittals that the
appeared to have on it stains of State of Haryana has appealed to this
semen. Court.
3. After investigation Jai Narain, 4. It appears that the respondent had
20 aged 32 years and Raja Ram,,. the 55 not entered appearance in this Court
respondent, were both sent up for within 30 days of the service on him
trial, the former under Sec. 366 and of the notice of lodgement of the
376 I.P.C. and the latter under Sec. petition of appeal. He applied for
366 and 376/109, I.P.C. They were condonation of the delay though
25 both committed to the court of 60 according to him no such application
Sessions. The learned Second was necessary. The permission to
Additional Sessions Judge, Karnal, enter appearance was granted' by this
who tried them, convicted Jai Narain Court at the time of the hearing.
alias Bawa under Sec. 378, I.P.C. and In the High Court Shri K. S. Keer,
30 sentenced him to rigorous 65 the learned counsel appearing for
imprisonment for six years and fine Raja Ram contended that even if the
of Rs. 500/- or in default to further case of the prosecution as made out
rigorous imprisonment for six from the evidence of the prosecutrix
months. The respondent was herself and supported by the
35 convicted under Sec. 366, I.P.C. and 70 testimony of her father Narain Dass
sentenced to rigorous imprisonment her mother Tara Wanti and her

189
 brother Abinash Kumar is admitted appellant, did not go to her house to
to be correct, no offence could be persuade her and to bring her from
said to have been committed by Raja there. She chose the dead of night
Ram under Sec. 366, I.P.C. 40 when other members of the family
5 Apparently it was this argument were, according to her own state-
which prevailed with the High Court. ment fast asleep. Soon after reaching
The learned single Judge, after the house of Raja Ram, who she says
briefly stating the facts on which the was waiting for her and that suggests
prosecution charge was founded 45 that she had on her visit during the
10 accepted the only contention raised day so settled with him, that she
before him, expressing himself thus : agreed to accompany him to
Bhishamwala well. These facts leave
"The question which arises, is
no doubt that she was neither enticed
whether in the face of these facts
50 nor taken by Raja Ram from the
stated by the prosecutrix Raja Ram
lawful guardianship of her parents.
15 could be held to be guilty of offence
She has herself chosen to accompany
under Sec. 366, Indian Penal Code.
Raja Ram and to be with Jai Narain,
In order that an accused person may
appellant. It could not be said that the
be guilty of offence under Sec. 366,
55 girl went with Raja Ram either by
Indian Penal Code, prosecution has
use of force or on account of any
20 to show that the woman was
kind of persuasion on the part of Raja
kidnaped or abducted in order that
Ram. Under the circumstances', it
she might be forced or seduced to
could not be held that the girl had
illicit intercourse or knowing it to be
60 been taken or seduced from the cus-
likely that she would be so forced or
tody of her parents. The girl reached
25 seduced. In other words, the
at that odd hour to carry into effect
prosecution must show that there was
her own wish of being in the
either kidnaping or abduction. Sec.
company of Jai Narain, appellant. In
361, Indian Penal Code, which
65 view of these facts, it could not be
defines 'kidnaping' says that when
held that Raja Ram was guilty of the
30 any person takes or entices any minor
act of either taking away the girl or
under the age of 18 if a female out of
seducing her out of the 'keeping of
the keeping of law guardianship of
her parents. The word 'take' implies
such minor without the consent of
70 want of wish and absence of desire of
such guardian, commits kidnaping.
the person taken. Once the act of
35 The girl left the house of her father at
going on the part of the girl is
midnight of her free will. Raja Ram,
voluntary and conformable to her

190
 own wishes and the conduct of the: it was in this background that the
girl leaves no doubt that it is so, Raja prosecutrix had left her father's house
Ram appellant could not be held to at midnight and had gone to the
have either taken or seduced the 40 house of Raja Ram from where she
5 girl". accompanied Raja Ram to the
Bhishamwala well, it is difficult to
The learned single Judge also
appreciate how Raja Ram could be
excluded the offence of abduction by
absolved of his complicity in taking
observing that Raja Ram had neither
45 the prosecutrix out of the keeping of
compelled the prosecutrix by force
her father, her lawful guardian,
10 nor had he adopted any deceitful
without his consent. It was in our
means to entice her to go from her
opinion, not at all necessary for Raja
house to that of Jai Narain.
Ram, himself to go to the house of
5. The approach and reasoning of the 50 the prosecutrix at midnight to bring
learned single Judge is quite her from there. Nor does the fact that
15 manifestly insupportable both on the prosecutrix had agreed to
facts and in law. It clearly ignores accompany Raja Ram to
important evidence on the record Bhishamwala well take the case out
which establishes beyond doubt that 55 of the purview of the offence of
the prosecutrix had been solicited kidnaping from lawful guardianship
20 and persuaded by Raja Ram to leave as contemplated by Sec. 361, I.P.C.
her father's house for being taken to This is not a case of merely allowing
the Bhishamwala well. Indeed, the prosecutrix to accompany Raja
earlier in his judgment the learned 60 Ram without any inducement
single Judge has himself observed whatsoever on his part from her
25 that according to the statement of the house to Bhishamwala well. Sec.
prosecutrix, on receipt of Raja Ram's 361, I.P.C. reads:
message as conveyed through his
"361. Kidnaping from lawful
daughter Sona, she contacted Raja
65 guardianship: Whoever takes or
Ram during day time in his house
entices any minor under sixteen years
30 and agreed with him that she (the
of age if a male, or under eighteen
prosecutrix would accompany him
years of age if a female, or any
(Raja Ram) to go to Bhishamwala
person of unsound mind, out of the
well at midnight to meet Jai Narain,
70 keeping of the lawful guardian of
as the other members of her family
such minor or person of unsound
35 would be sleeping at that time. If,
mind, without the consent of such
according to the learned single Judge,

191
 guardian, is said to kidnap such appears to be compatible with the
minor or person from lawful independence of action and
guardianship. Explanation.--The movement in the minor, the
words 'lawful guardian' in this Sec. 40 guardian's protection and control of
5 include any 'person lawfully the minor being available, whenever
entrusted with the care or custody of necessity arises. On plain reading of
such minor or other person. this Sec. the consent of the minor
who is taken or enticed is wholly
6. Exception.-This Sec. does not
45 immaterial : it is only the guardian's
extend to the act of any person who
consent which takes the case out of
10 in good faith believes himself to be
its purview. Nor is it necessary that
the father of an illegitimate child, or
the taking or enticing must be shown
who in good faith believes himself to
to have, been by means of force, or
be entitled to the lawful custody of
50 fraud. Persuasion by the accused
such child, unless such act is
person which creates willingness on
15 committed for an immoral or
the part of the minor to be taken out
unlawful purpose."
of the keeping of the lawful guardian
The object of this Sec. seems as would be sufficient to attract the
much to protect the minor children 55 Sec.. In the present case the evidence
from being seduced for improper of the prosecutrix as corroborated by
20 purposes as to protect the rights and the evidence of Narain Das, P.W. 1
privileges of guardians having the (her father) Abinash Chander P.W. 3
lawful charge or custody of their (her brother) and Smt. Tarawanti
minor wards. The gravamen of this 60 P.W 4 (her mother) convincingly
offence lies in the taking or enticing establishes beyond reasonable doubt
25 of a minor under the ages specified in : (1) that Jai Narain had tried to
this Sec., out of the keeping of the become intimate with the prosecutrix
lawful guardian without the consent and to seduce her to go and live with
of such guardian. The words "takes 65 him and on objection having been
or entices any minor out of the raised by her father who asked Jai
30 keeping of the lawful, guardian of Narain not to visit his house, Jai
such minor" in Sec. 361, are Narain started sending messages to
significant. The use of the word the prosecutrix through Raja Ram,
"keeping" in the context connotes the 70 respondent; (2) that Raja Ram,
idea of charge, protection, respondent, had been asking the
35 maintenance and control, further the prosecutrix to be ready to accompany
guardian's charge and control- Jai Narain; (3) that at about 12 noon

192
 on April 4, Raja Ram went to see the soliciting or persuading her to leave
prosecutrix at her house and asked her father's house to go with him to
her to visit his house when he would 40 Jai Narain. It is fully established on
convey Jai Narain's message to her; the record that he had been
5 (4) that on the same day after some conveying me& sages from Jai
time Sona was sent by her father to Narain to the prosecutrix and had
the house of the prosecutrix to fetch himself been persuading her to
her to his house where the 45 accompany him to Jai Narain's Place
prosecutrix was informed that Jai where he would hand her over to
10 Narain would come that night and him. Indisputably the last message
would take the prosecutrix away; was conveyed by him to the
'and (5) that Raja Ram accordingly prosecutrix when she was brought by
asked the prosecutrix to visit his 50 his daughter Sona from her own
house at about midnight so that she house to his and it was pursuant to
15 may be entrusted to Jai Narain. This this message that the prosecutrix
evidence was believed by the learned decided to leave her father's house on
Additional Sessions Judge who the midnight in question for going to
convicted the respondent, as already 55 Raja Ram's house for the purpose of
noticed. The learned single Judge being taken to Jai Narain's place. On
20 also did not disbelieve her statement. these facts it is difficult to hold that
Indeed, in the High Court the learned Raja Ram was not guilty of taking or
counsel for Raja Ram had proceeded enticing the prosecutrix out of the
on the assumption that the evidence, 60 keeping of her father's lawful
of the prosecutrix is acceptable, the guardianship. Raja Ram's action was
25 argument being that even accepting the proximate cause of the
her statement to be correct no offence prosecutrix going out of the keeping
was made out against Raja Ram. of her father and indeed but for Raja
Once the evidence of the prosecutrix 65 Ram's persuasive offer to take her to
is accepted, in our opinion, Raja Ram Jai Narain the prosecutrix would not
30 cannot escape conviction for the have gone out of the keeping of her
offence of kidnapping her from her father who was her lawful guardian,
father's lawful guardianship. It was as she actually did. Raja Ram
not at all necessary for Raja Ram to 70 actively participated in the formation
have himself gone to the house of the of the intention of the prosecutrix to
35 prosecutrix to bring her from there on leave her father's house. The fact that
the midnight in question. It was the prosecutrix was easily persuaded
sufficient if he had earlier been to go with Raja Ram would not

193
 prevent him from being guilty of the the judgment to the facts of that case
offence of kidnapping her. Her it was said that no deception or
consent or willingness to accompany 40 forwardness on the part of the girl in
Raja Ram would be immaterial and it such cases could prevent the person
5 would be equally so even if the taking her away from being guilty of
proposal to go with Raja Ram had the offence in question. The second
emanated from her. There is no doubt decision is authority for the view that
a distinction between taking and 45 in order to constitute an offence
allowing a minor to accompany a under 9 Geo. IV, c. 3 1, Sec. 20 it is
10 person. But the present is not a case sufficient if by moral force a
of the prosecutrix herself leaving her willingness on the part of the girl to
father's house without any go away with the prisoner is created-
inducement by Raja Ram who 50 but if her going away with the-
merely allowed her to accompany prisoner is entirely voluntary, no
15 him. On behalf of the appellant State offence is committed. The last case
our attention was drawn to some of was of a conviction under the Statute
the English decisions for the purpose (24 & 25 Vict. c. 100, Sec. 55).
of illustrating the scope of the 55 There inducement by previous
protection of minor children and of promise or persuasion was held
20 the sacred right of their parents and sufficient to bring the case within the
guardians to the possession of minor mischief of the Statute. In the
children under the English law. The English Statutes the expression used
learned counsel cited Reg. v. Job 12- 60 was "take out of the possession" and
L499Sup.C. I./73 Timmins(1); Reg. not "out of the keeping" as used in
25 v. Handley & Anr.(2) and Reg v. Sec. 361, I.P.C. But that expression
Robb(3). In the first case Job was construed in the English
Timmins was convicted of an decisions not to require actual
indictment framed upon 9 Geo. IV, c. 65 manual possession. It was enough if
31, Sec. 20 for taking an unmarried at the time of the taking the girl
30 girl under sixteen out of the continued under the care, charge and
possession of her father, and against control of the parent : see Reg. v.
his will. It was observed by Erle C.J. Manketelow.(4) These decisions only
that the Statute was passed for the 70 serve to confirm our view that Sec.
protection of parents and for 361 is designed also to protect the
35 preventing unmarried girls from sacred right of the guardians with
being taken out of possession of their respect to their minor-wards. On
parents against their will. Limiting behalf of the respondent it was

194
 contended as a last- resort that this itself. In the present case the,
Court should be slow to interfere acquittal by the High Court is clearly
with the conclusions of the High erroneous both on facts and in law
Court on appeal from an order of and keeping in view the nature of the
5 acquittal and drew our attention to an 40 offence committed we consider that
unreported decision of this Court in there is clearly failure of justice
Shantiranjan Majumdar v. A justifying interference by this Court
bhoyananda Brahmachari & Ors. (5). under Art. 136 of the Constitution.
The decision cited was given by this The result is that the appeal is
10 Court on appeal by the complainant. 45 allowed and setting aside the order of
In any event it was observed there the High Court acquitting Raja Ram,
that the complainant appellant had respondent, we restore the order of
not been able to satisfy the court that the Second Addi- tional Sessions
any grave miscarriage of justice had Judge affirming both the conviction
15 been caused with the result that he 50 and sentence as imposed by the trial
could not be permitted to urge court. Raja Ram, respondent should
grounds other than those which are surrender to his bail bond to serve
fit to be urged at this time of out the sentence.
obtaining special leave to appeal. 'Me
V.P.S. Appeal
20 decision of the High Court there
55 allowed.
could not "even remotely be
characterized as unreasonably", to
use the language of this Court,
though it might have been possible to
25 take the view that the circumstances
found by the High Court were not
adequate for (1) 169English Reports
1260. 60

(2) 175 English Reports 890.

30 (3) 176 English Reports 466.
(4) 6 Cox. Crim. cases 143.
(5) Crl. A. No. 21 of 1960 decided on
14th September, 1964. 65
enabling it to set aside the verdict of
35 the jury and examine the evidence for
195
 26. the custody of her parents (P.Ws. 1
and 3). The victim girl and the
Biswanath Mallick v. State of
accused were medically examined on
Orissa – 1995 Cr LJ 1416 (Ori) 51
police requisition. On completion of
A. Pasayat, J. 40 investigation, charge-sheet was
5 1. Petitioner Biswanath Mallick (also submitted and the accused-petitioner
referred to as 'accused' hereinafter) faced trial.
calls in question legality of his 3. The accused-petitioner pleaded
conviction for commission of innocence and stated that he was
offences punishable under Sec. 45 falsely implicated.
10 363/366 of the Indian Penal Code,
4. Nine witnesses were examined to
1860 (in short, 'IPC') and sentence of
further the prosecution case. As
two years' rigorous imprisonment
indicated above, P.W. 2 is the victim
and fine of Rs. 100/-, in default to
and P.Ws 1 and 3 are her parents.
undergo two months' rigorous
50 P.W. 7 is the doctor who examined
15 imprisonment on each count. The
the victim and the accused and P.W.
conviction and sentence as awarded
9 is the Investigating Officer.
by the learned Assistant Sessions
Judge, Kendrapara were affirmed in 5. On consideration of the evidence
appeal by the learned Additional on record, the learned trial Judge
20 Sessions Judge, Kendrapara. 55 found the petitioner guilty, and
convicted and sentenced him, which
2. Prosecution version as unfolded
got seal of approval in appeal.
during trial is as follows :
6. In support of the revision
On 9-12-1989, around midnight
application, Mr. S. S. Das learned
Kalyani (P.W. 2) had gone out to
60 counsel for petitioner submitted that
25 attend call of nature. She was
the age of the victim was more than
forcibly "kidnapped by the petitioner,
18 years, and in any event she had
who took her first to Cuttack
attained the age of discretion, and
subsequently to Bhubaneswar and
therefore, even if the stand taken by
lastly to Jeypore, Information was
65 the informant that the age of the
30 lodged at the Police Station by
victim girl was 17 years 8 months
Kalyani's father Baishnao (P.W. 1)
and 7 days on the date of occurrence,
on 1l-12-
the same is of little consequence. It is
1989.Duringinvestigationthe victim
further stated that the evidence on
was rescued from house of one
70 record clearly shows that the victim
35 accused's relations and was given in
196
 had done with the accused on her the girl consents or not. The taking
own volition, and there was no need not be by force, actual or
compulsion for marriage. It was constructive. There must be a taking
further submitted that the sentences 40 of the child out of the possession of
5 awarded are also high. Learned the guardian. The Explanation to Sec.
counsel for State on the other hand 361 provides that the words 'lawful
submitted that the courts below have guardian' in the said Sec. include any
elaborately analysed the evidence person lawfully entrusted with the
and while exercising revisional 45 care or custody of such minor or
10 jurisdiction it is impermissible to other person. The word 'take' means
make fresh assessment unless the to cause to go, to escort or to get into
conclusions are shown to be perverse possession. It implies want of wish
and unreasonable. and absence of desire of the person
50 taken. There is, however, a
7. So far as offences punishable
distinction between taking and
15 under Sec. 363 and 366, IPC are
allowing a minor to accompany a
concerned, it is necessary to note
person.
their essential ingredients, Sec. 363
provides for punishment in case of The word 'entice' involves an idea of
kidnapping of any person from India 55 inducement or allurement by exciting
20 or from lawful guardianship. hope or desire in the other. The
Kidnapping from lawful inducement or allurement may take
guardianship has been defined in Sec. many forms, difficult to visualise and
361. Essential ingredients of the said describe exhaustively; some of them
Sec. are four in number, i.e., (i) 60 may be quite subtle, depending for
25 taking or enticing away a minor or a their success, on the mental state of
person of unsound mind; (ii) such the person at the time when the
minor must be under sixteen years of inducement is intended to operate.
age, if a male, or under eighteen This may work immediately or it
years of age if a female;(iii)the taking 65 may create continuous and gradual,
30 or enticing must be out of the but imperciptible, impression
keeping of the lawful guardian of culminating, after some time, in
such minor or person of unsound achievement of its ultimate purpose
mind; (iv) such taking or enticing of successful inducement. The
must be without the consent of such 70 offence of kidnapping from lawful
35 guardian. If the girl is less than 18 guardianship is complete when the
years of age, it is immaterial whether minor is actually taken from lawful

197
 guardianship. The act of taking is not 8. Significantly the word 'possession'
in the proper sense of the term a has not been used in the IPC, but the
continuous act; when once the boy or language used is 'out of the keeping,
girl has been actually taken out of the of the lawful guardian'. The word
5 keeping, the act is a completed one. 40 'keeping' connotes the fact that it is
Enticement is an act of the accused compatible with independence of
by which the person kidnapped is action and movement in the object
induced of his or her own accord to kept. It implies neither apprehension
go. to the kidnapper. It is not nor detention but rather maintenance,
10 necessary that the taking or enticing 45 protection and control, manifested
should be shown to have been by not by continual action but as
means of force or fraud. Enticement available on necessity arising. The
need not be confined to any single word 'lawful' has been deliberately
form of allurement. Anything which used in its wider connotation, and it
15 is like to allure the minor girl would 50 is distinguishable from the word
be sufficient. Where the minor 'legal'. That has necessitated insertion
kidnapped is a girl under eighteen of the Explanation.
years of age, it is no defence that the
9. So far as Sec. 366 is concerned,
accused did not know the girl to be
the essential ingredients are : (i)
20 under eighteen, or that from her
55 kidpnapping or abducting any
appearance or conduct she appeared
woman; (ii) such kidnapping or
to have attained the age of eighteen.
abducting must be (a) with intent that
There is an essential distinction
she may be compelled or knowing it
between taking and enticing. The
to be likely that she will be
25 mental attitude of the minor is
60 compelled to marry any person
immaterial in the case of taking when
against her will; or (b) in order that
an accused takes a minor with him,
she may be forced or seduced to
whether he or she is willing or not,
illicit intercourse or knowing it to be
the act of taking is complete and the
likely that she will be forced or
30 condition is satisfied. But the word
65 seduced to illicit intercourse. The
'entice' involves an idea of
second part of the Sec. requires two
inducement or allurement. One does
things. (1) By criminal intimidation
not entice another unless the latter
or abuse of authority or by
attempts to do a thing which she or
compulsion inducing any woman to
35 he would not otherwise do.
70 go from any place; and (2) such
going must be with intent that she

198
 may be, or with knowledge that it is 363. Abduction on the other hand is
likely that she will be, forced or not punishable per se, and is
seduced to illicit intercourse, with 40 punishable only when accompanied
some person. The word 'woman' has by a particular purpose as
5 been defined in Sec. 10. It includes a contemplated in Sec. 364 to 366. But
minor female. If the girl was eighteen as kidnapping also may be for the
or over, she could only be abducted same purposes, Sec. 364 to 366 deal
and not kidnapped, but if she was 45 with both kidnapping and abduction
under eighteen she could kidnapped for the purposes stated therein and
10 as well as abducted if the taking was prescribe the punishments.
by force or the taking or enticing was
10. In the case at hand the victim (P.
by deceitful means. The intention of
W. 2) has nowhere stated that there
the accused is the basis and the
50 was any intention for compulsion to
gravemen of offence under Sec. 366.
marry against her will. By merely
15 The volition, the intention and the
finding that the accused abducted or
conduct of the woman do not
kidnapped the woman the charge
determine the offence; they can only
under Sec. 366 cannot be held to
bear upon the intent with which the
55 have been proved. It is further
accused kidnapped or abducted any
necessary to find that he abducted or
20 woman and the intent of the accused
kidnapped the woman for any of the
is the vital question for determination
purposes mentioned in Sec. 366. In
in each case. Kidnapping and
the absence of such finding the
abduction are two distinct offences.
60 charge fails. In that view of the
The ingredients of the two offences
matter, the conviction" under Sec.
25 are entirely different. Kidnapping
366, IPC is not maintainable, and is
except kidnapping from India is an
accordingly set aside.
offence against guardianship. It
Consequentially the sentence
consists of enticing or removing a
65 awarded is vacated.
girl from the keeping of the lawful
30 guardian without her consent. So far as conviction under Sec. 363,
Abuduction is an offence as defined IPC is concerned, I find that the
in Sec. 362 when a person is by force courts below have elaborately
compelled or by deceitful means analysed the evidence and have come
induced to go from any place. In 70 to a definite finding that the age of
35 abduction the person abducted may the victim girl was less than eighteen
be a minor or a major. Kidnapping is at the time of commission of offence.
punishable per se in terms of Sec. Great emphasis has been laid on the

199
 evidence of the doctor who has stated petitioner in custody. I reduce the
that the girl may have 18 years of age sentence to the period already
at the time of her examination. The 40 undergone. The sentence of fine and
same is a statement relating to a default sentence are, however,
5 probability, which may not have maintained.
factually correct. Evidence on record
The prayer for revision is allowed to
clearly shows that the girl was less
the extent indicated above.
than eighteen. The school records
show her age to be so. The oral 45
10 evidence of the parents is also to the
similar effect. While exercising
revisional jurisdiction it is
impermissible to reassess the
evidence. Unless the conclusions are
15 perverse or are of such nature that no
reasonable man would arrive at such 50
conclusions, or are contrary to
material on record. This is not a case
of that nature. Conclusion of the
20 courts below that the girl was less
than eighteen is irreversible. The
ingredients necessary to constitute an
offence under Sec. 361 have been
55
clearly brought home against the
25 accused I find no reason to accept the
submission that the evidence is
deficient to bring home the
accusations. It is alternatively
submitted by the learned counsel for
30 the accused-petitioner that the
occurrence took place about five 60
years back in the meantime the
accused and the victim girl are
leading happy marital life, and it
35 would not be proper to send the
accused back to custody. Considering
aforesaid facts and period spent by

200
 27. (Commerce Dept.) Silchar - 4
35 (Assam).
Bodhisattwa Gautam v. Miss
Subhra Chakrabarty – AIR 1996 6. That, on the 10th June, 1989 for
SC 922 the 1st time the accused visited the
complainant's residence in Kohima
5 SAGHIR AHMAD. J.
and thereafter often he used to visit
Subhra Chakraborty (alias - Kalpana) 40 complainant's residence, as a teacher
who was a student of the Baptist he was respected by the complainant
College, Kohima where the opposite as well as all the members including
party, Shri Bodhisattwa Gautam was her parents. In course of such visits
10 a lecturer, filed a complaint in the once in the month of Nov. 1989 the
Court of the Judicial Magistrate, Ist 45 accused voluntarily told your
Class, Kohima, Nagaland, alleging, complainant that he was already in
inter alia, as under :- her love. Thus there developed a love
"3. That, your complainant begs to affair between themselves since
15 state that in April 1989 the accused 1989.
person entered into Baptist College, 50 7. That, the complainant most
Kohima as a Lecturer thereof and the humbly states further that with
complainant was a student of the said malafide intention to practise
College at that relevant period. deception on the complainant, the
20 4. That, the accused person was in accused gave false assurance of
said Service in Kohima from April 55 marriage to the innocent complainant
1989 till he resigned the Service on and thereby the accused dishonestly
27th Jan, 1995 and was residing in a procured sexual intercourse with the
rented house in Kenezou Valley, complainant. The accused often use
25 Kohima owned by Dr. Zakiebatsu to induce the complainant to have
Angam. 60 biological contact with him, but
whenever he was approached by the
5. That, on 6th Feb. 1995 the accused complainant to complete the
person left for silchar and presently marriage ceremony, the accused very
residing in his uncle's (Shri Amiya tactfully used to defer the marriage
30 Kanta Chakraborty) house in 65 sometimes saying that he was
Premtala, Silchar-4, Dist. Cachar, in waiting for his parents formal
the State of Assam and assumed his consent and sometimes saying to
service as Lecturer in Cachar College cooperate him till he got a Govt.
Service.

201
 8. That, in course of continuation of the accused kept on insisting the
the affairs between the complainant complainant to be refrained from
and the accused, the complainant got giving birth to the baby and was
pregnant twice, once in the month of 40 pressurizing her to undergo
5 September, 1993 and secondly on in operation/abortion despite her refusal
the month of April 1994 out of her for the same. The accused with
co- habitation with the accused fraudulent intention to deceive the
person. complainant proposed the said
45 abortion on the plea that birth of the
9. That, the complainant being
baby would be a barrier to convince
10 worried about her said pregnancy
his parents to accept the complainant
created pressure upon the accused to
as their daughter-in-law and such
marry her immediately and to save
event would lead the complainant to
her from being ruined, but the
50 a path of unhappiness. The
accused on the plea of his parents
complainant being an innocent lady
15 permission went on deferring the
failed to understand the accused's
marriage, as a result there was a
wicked and mischievous plan
quarrel in between the complainant
whereby the accused succeeded and
and the accused, where after the
55 dishonestly motivated the
accused lastly opined for secret
complainant to undergo operation in
20 marriage to avoid social gathering as
the Putonou Clinic, Kohima and
he was waiting for his parents
aborted in October' 93.
permission. The complainant being
pregnant was placed in a very 10. That, the said Ceremony of
awkward position, as such, agreed to 60 giving Sindur (Vermilion) on the
25 said secret marriage, accordingly the complainant's forehead by the
accused on the 20th September, accused in front of the God made the
1993, married the complainant in complainant to believe that she was
front of the God he Worships in his lawfully married wife of the accused
residence in Kenozou Valley, 65 and with such believe she in good
30 Kohima by putting Vermilion faith completely submitted herself to
(sindur) on the complainant's the accused as an ideal wife and
forehead and accepted the never disbelieved the accused. The
complainant as his lawful wife and complainant even did not have any
thus the complainant was consorted 70 doubt as to why the accused insisted
35 and consoled. But the complainant her to keep their marriage secret. The
faced further corporal punishment, as complainant was forced to undergo

202
 abortion even second time in the up all those hardships since 1989. On
month of April' 94 in the hearing the massage that the accused
CAREWELL NURSING HOME at would go to Silchar, the complainant
Dimapur with the pretext that if the 40 on 4th Feb.'95 went down to
5 complainant gave birth to any child Dimapur and visited the accused to
before the accused could convince take the complainant permanently
his parents she would never be with the accused to Silchar as he was
accepted by Bodhisatta's parents and going to Silchar to join as a Lecturer
relatives further their marriage being 45 in a Government College named
10 a secret one, the developed stage of CACHAR COLLEGE which both of
the complainant would hamper the them actually waited for. But the
dignity of her own parents and other wicked accused forgetting the
paternal relations irreparably and consequences of his all fraudulent
thus taking the privilege of 50 activities in total disregards of their
15 complainant innocency the accused marriage and their relationship
has exploited the complainant in a refused to accept the complainant as
very pre-planned way. The accused is his wife and abandoned the
so wicked that he even furnished a complainant asking her to forget all
false name in the said Nursing Home 55 her dream. Be it further submitted
20 and signed the consent that the accused's friends namely (1)
Register/Paper as BIKASH Shri Subrata Datta, (2) Shri Ranadhir
GAUTAM concealing his real name Deb (3) Shri Prasanta Dey and (4)
BODHISATTA GAUTAM which Shri Pradeep Paul of Dimapur tried a
fact was unknown to the innocent 60 lot to convince the accused and not to
25 complainant until recently and came abandon the complainant in such a
to know only in the 2nd week of cruel manner, as he had already
February, 1995 when the married the complainant and
complainant went to obtain a cohabited years together, but all
certified copy of the abortion consent 65 efforts ended in futility as the
30 paper of the accused. A copy of said accused in reply said that the giving
consent paper signed by the accused of vermilion on complainant's
in annexed hereto and marked as forehead was pretext of marriage to
Annexure-1. over come the past situations and not
70 at all a complete marriage and the
11. That, believing her self to be the
accused repeatedly said that he had
35 lawful wife of the accused, the
no option, but to abandon the
complainant like a dumb shouldered
complainant as his parents are not

203
 agreeable to accept the complainant proceedings initiated on its basis, on
as their daughter-in-law. the ground that the allegations, taken
at their face-value, do not make out
12. That, the accused not only
40 any case against him. But the High
induced the complainant and
Court by its judgment and order
5 cohabited with her, giving her a false
dated May 12, 1995.dismissed the
assurance of marriage but also
petition compelling Bodhisattwa
fraudulently gave through certain
Gautam to approach this Court by
marriage ceremony with knowledge
45 way of Special Leave Petition.
that was not a valid marriage and
Special Leave Petition (Criminal)
10 thereby dishonestly made the
No. 2675/95 was filed and was
complaint to believe that she was a
dismissed by us by our order dated
lawfully married wife of the accused.
October 20, 1995, in which we stated
The accused even committed the
50 as under :-
offence of miscarriage by compelling
15 the complainant to undergo abortion "We see no ground to interfere with
twice against her free will. The way the impugned judgment of the High
the accused exploited the Court. We dismiss the special leave
complainant and abandoned her is petition. Having done so, we further
nothing but an act of grave cruelty as 55 take suo motu notice to the facts of
20 the same has caused serious injury this case as narrated in the
and danger to the complainant's complainant which has been read
health both mentally and physically, before us. We issue notice to the
as such, the accused above named petitioner as to why he should not be
has committed Criminal offences 60 asked to pay reasonable maintenance
25 punishable U/S per month to the respondent during
312/420/493/496/498-A of Indian the pendency of the prosecution
Penal Code." proceedings against him. Mr. A.
Bhattacharjee accepts notice.
This complaint was registered as
Criminal Case No. 1/95 under Sec. 65 List it on 1.12.1995.
30 312/420/493/496/498-A, Indian
Petitioner in person be present in
Penal Code and Bodhisattwa Gautam
Court on the next date of hearing.
was summoned but he, in the
Notice be also sent to the respondent
meantime, filed a petition in the
along with the copy of this order."
Gauhati High Court under Sec. 482
35 of the Code of Criminal Procedure 70 Pursuant to the above order, Shri
for quashing of the complaint and the Bodhisattwa Gautam put in

204
 appearance and filed an affidavit in Gautam resumed his duties in the
reply in which he denied the College on the re-opening day of the
allegation made against him in the College after summer vacation, i.e.,
complaint and stated that the on 15th of July, 1995 and at first he
5 complaint was filed only to harass 40 sought leave for twenty one days and
and humiliate him and, therefore, the for three years at a stretch.
there was no occasion to direct him
The Principal also stated that Shri B.
to pay any amount as maintenance to
Gautam was appointed against a lien
the respondent. He also indicated that
vacancy for one year vice Dr. A.
10 although he had taken up service in
45 Mazumdar, the one-year lien having
another College, namely, Cachar
expired on 9.9.1995.
College, his services had since been
terminated. Para 4 of his affidavit in The matter was thoroughly discussed
which these facts have been stated is and it was unanimously resolved that
15 reproduced below :- since Shri B. Gautam's term of
50 appointment against lien vacancy had
"4. That I say that I am not in any
expired on 9.9.1995 and his service
employment now and I am an
was not confirmed, (he did not
unemployed person after my services
complete even one full year's
as a Lecturer in Cachar College,
service), he cannot be granted three
20 Silchar, has been terminated with
55 years' leave at a stretch as prayed for
effect from 16.7.1995 by a resolution
by him.
of the Governing Body of the said
College passed in a meeting held on 5. Also resolved that as Shri B.
14.9.1995. A true copy of the Gautam has been absent from the
25 proceedings of the said meeting of College from 16th of July, 1995 and
the Governing Body of Cachar 60 also the term of his appointment
College, Silchar held on 14.9.1995 is expired on 9.9.1995, Shri Gautam's
annexed hereto as Annexure - A1. service as lecturer in the Deptt. of
Commerce in Cachar College,
The relevant resolution No. 5(A) of
Silchar be treated as having been
30 the said meeting of the Governing
65 terminated w.e.f. 16th July, 1995.
Body reads as follows :-
The Principal be requested to
"Resolution No. 5(A): forward the above resolution to the
D.P.I. Assam, for his kind approval
The Principal placed the leave
of the termination of the services of
petitions of Shri B.Gautam, Lecturer,
70 Sri B. Gautam w.e.f. 16.7.1995."
35 Deptt. of Commerce, adding that Shri

205
 This resolution along with other her with the tragic result that Subhra
resolutions passed in the said Chakraborty became pregnant. While
meeting held on 14.9.1995 were in that state, she persuaded Gautam
placed before the meeting of the 40 to marry her, but he, deferred the
5 Governing Body held subsequently proposal on the plea that he had to
on 11.11.1995 for confirmation. A take his parents' permission. He,
true copy of the notice of meeting to however, agreed to marry her
be held on 11.11.1995 containing the secretly. Consequently, on 20th
agenda of the meeting is annexed 45 September, 1993, Bodhisattwa
10 hereto as Annexure - A2. Now I have Gautam took her before the God he
been reliably informed that in the worshiped and put Vermilion on her
meeting of the Governing Body on forehead and accepted her as his
11.11.1995, the aforesaid resolution lawful wife. In spite of the secret
terminating my service has been 50 marriage, he, through his insistence,
15 confirmed. I further state that I have succeeded in motivating her for an
not received any payment towards abortion which took place in a clinic
my salary since July, 1995 and after at Kohima in October, 1993. Subhra
the termination of my service with Chakraborty became pregnant second
effect from 16.7.1995 no question of 55 time and at the instance of
20 my receiving any salary arises. In the Bodhisattwa Gautam she had to abort
circumstances I respectfully submit again in April, 1994 in the Carewell
that no question of burdening me Nursing Home at Dimapur where
with the liability of paying Gautam signed the consent paper and
maintenance to the respondent can 60 deliberately mentioned himself as
25 arise." Bikash Gautam.
6. The facts set out in the complaint 7. The Gauhati High Court, as
lodged against Bodhisattwa Gautam already pointed out above, refused to
indicate that there was initially a quash the proceeding in Criminal
period of romance during which 65 Case No 1/95 pending in the Court of
30 Bodhisattwa Gautam used to visit the the Judicial Magistrate, Ist Class,
house of Subhra Chakraborty and on Kohima and this Court has upheld
one occasion, he told her that he was the judgment of the Gauhati High
in love with her and ultimately Court. The question is whether any
succeeded, on the basis of his 70 further order can be passed in the
35 assurances to marry her, in case and Gautam can be compelled to
developing sexual relationship with pay maintenance to Subhra

206
 Chakraborty during the pendency of Commissioner, Delhi Police HQs. &
the Criminal Case for which Show Anr. : (1989) 4 SCC 730.
Cause Notice has been issued to
For the exercise of this jurisdiction, it
him?
is not necessary that the person who
5 This Court, as the highest Court of 40 is the victim of violation of his
the country, has a variety of fundamental right should personally
jurisdiction. Under Article 32 of the approach the Court as the Court can
Constitution, it has the jurisdiction to itself take cognizance of the matter
enforce the Fundamental Rights and proceed suo motu or on a
10 guaranteed by the Constitution by 45 petition of any public spirited
issuing writs in the nature of Habeas individual. This Court through its
Corpus, Mandamus, Prohibition, various decisions, has already given
Quo-Warranto and Certiorari. new dimensions, meaning and
Fundamental Rights can be enforced purpose to many of the fundamental
15 even against private bodies and 50 rights especially the Right to
individuals. Even the right to Freedom and Liberty and Right to
approach the Supreme Court for the Life. The Directive Principles of the
enforcement of the Fundamental State Policy, have also been raised by
Rights under Article 32 itself is a this Court from their static and
20 Fundamental Right. The jurisdiction 55 unenforceable concept to a level as
enjoyed by this Court under Article high as that of the fundamental
32 is very wide as this Court, while rights.
considering a petition for the
8. This Court has, innumerable times,
enforcement of any of the
declared that "Right to Life" does not
25 Fundamental Rights guaranteed in
60 merely mean animal existence but
Part III of the Constitution, can
means something more, namely, the
declare an Act to be ultra vires or
right to live with human dignity. (See
beyond the competence of the
: Francis Coralie Mullin vs. The
legislature and has also the power to
Administrator, Union Territory of
30 award compensation for the violation
65 Delhi & Ors., AIR 1981 SC 746;
of the Fundamental Rights. See :
State of Maharashtra vs.
Rudul Sah vs. State of Bihar : AIR
Chandrabhan, AIR 1983 SC 803;
1983 SC 1086; Peoples' Union for
Olga Tellis & Ors. vs. Bombay
Democratic Rights (through its
Municipal Corporation & Ors., AIR
35 Secretary & Anr.) vs. Police
70 1986 SC 180; and Delhi Transport
Corporation vs. D.T.C. Mazdoor

207
 Congress & Ors., AIR 1991 SC 101). 9. Rape is thus not only a crime
Right to Life would, therefore, against the person of a woman
include all those aspects of life which (victim), it is a crime against the
go to make a life meaningful, 40 entire society. It destroys the entire
5 complete and worth-living. psychology of a woman and pushed
her into deep emotional crises. It is
Unfortunately, a woman, in our
only by her sheer will power that she
country, belongs to a class or group
rehabilitates herself in the society
of society who are in a disadvantaged
45 which, on coming to know of the
position on account of several social
rape, looks down upon her in
10 barriers and impediments and have,
derision and contempt. Rape is,
therefore, been the victim of tyranny
therefore, the most hated crime. It is
at the hands of men with whom they,
a crime against basic human rights
fortunately, under the Constitution
50 and is also violative of the victim's
enjoy equal status. Women also have
most cherished of the Fundamental
15 the right to life and liberty; they also
Rights, namely, the Right to Life
have the right to be respected and
contained in Article 21. To many
treated as equal citizens. Their
feminists and psychiatrists, rape is
honour and dignity cannot be
55 less a sexual offence than an act of
touched or violated. They also have
aggression aimed at degrating and
20 the right to lead an honourable and
humiliating women. The rape laws
peaceful life. Women, in them, have
do not, unfortunately, take care of the
many personalities combined. They
social aspect of the matter and are
are Mother, Daughter, Sister and
60 inept in many respects.
Wife and not play things for centre
25 spreads in various magazines, It is said that present days' law
periodicals or newspapers nor can relating to rape have their origin in
they be exploited for obscene 1736 in Britain, when Sir Mathew
purposes. They must have the liberty, Hale in his Historia Placitorum
the freedom and, of course, 65 Cornea or, in other words, "History
30 independence to live the roles of the pleas of the Crown" presented
assigned to them by Nature so that common-law rape doctrines which
the society may flourish as they alone were immediately noticed to be
have the talents and capacity to shape hostile to the interests of women as
the destiny and character of men 70 one of the requirement was to inform
35 anywhere and in every part of the the jury during trial that rape charges
world. were easy to bring but difficult to

208
 defend. Consequently, in a tide of SCC 179, the Court went to the
law reforms, this requirement was extent of laying down that even if the
removed. The rule of corroboration victim of rape is not available to give
which was much stricter in a trial for evidence on account of her having
5 the offence of rape than for other 40 committed suicide, the prosecution
offences was also largely removed case cannot be thrown away over
from law. board. In such a case, the non-
availability of the victim will not be
10. In India also the rule of
fatal and the Court can record a
"Corroboration of the Prosecutrix"
45 conviction on the basis of the
10 has undergone a change through
available evidence brought on record
statutory amendments as also
by the prosecution.
through decisions of this Court.
In spite of the decision of this Court
In State of Himachal Pradesh vs.
that (depending upon the
Raghubir Singh, 1993(2) SCC 622,
50 circumstances of the case)
15 this Court observed as under :-
corroboration of the prosecutrix was
"There is no legal compulsion to look not necessary, the cases continued to
for corroboration of the evidence of end in acquittal on account of
the prosecutrix before recording an mishandling of the crime by the
order of conviction. Evidence has to 55 police and the invocation of the
20 be weighed and not counted. theory of "consent" by the Courts
Conviction can be recorded on the who tried the offence. To overcome
sole testimony of the prosecutrix, if this difficulty, the legislature
her evidence inspires confidence and intervened and introduced Sec. 114-
there is absence of circumstances 60 A in the Evidence Act by Act No. 43
25 which militate her veracity. In the of 1983 reading as under:-
present case the evidence of the
114-A. Presumption as to absence of
prosecutrix is found to be reliable
consent in certain prosecutions for
and trustworthy. No corroboration
rape.- In a prosecution for rape under
was required to be looked for, though
65 clause (a) or clause (b) or clause (c)
30 enough was available on the record.
or clause (d) or clause (e) or clause
The medical evidence provided
sufficient corroboration." (g) or sub-Sec. (2) of Sec. 376 of the
Indian Penal Code (45 of 1860),
11. In State of Karnataka vs.
where sexual intercourse by the
Mahabaleshwar Gourya Naik, AIR
70 accused is proved and the question is
35 1992 SC 2043 = 1992 Suppl. (3)

209
 whether it was without the consent of Domestic Working Women's Forum
the woman alleged to have been vs. Union of India, 1995 (1) SCC 14,
raped and she states in her evidence in which Court observed as under :-
before the Court that she did not
40 "It is rather unfortunate that in recent
5 consent, the Court shall presume that
times, there has been an increase in
she did not consent."
violence against women causing
12. This Sec. enables a court to raise serious concern. Rape does indeed
a presumption that the woman who pose a series of problems for the
was the victim of rape had not 45 criminal justice system. There are
10 consented and that the offence was cries for harshest penalties, but often
committed against her will. The times such crimes eclipse the real
situation, however, has hardly plight of the victim. Rape is an
improved. Conviction rates for rape experience which shakes the
are still lower than any other major 50 foundations of the lives of the
15 crime and the woman continue to victims. For many, its effect is a
argue even today that in rape cases long-term one, impairing their
the victimized women, rather than capacity for personal relationships,
the rapists, were put on trial. A large altering their behaviour values and
number of women still fail to report 55 generating and less fears. In addition
20 rapes to the police because they fear to the trauma of the rape itself,
embarrassing and insensitive victims have had to suffer further
treatment by the doctors, the law agony during legal proceedings."
enforcement personnel and/or the This Court further observed as under
cross-examining defence attorneys. 60 :- "The defects in the present system
25 The fear has to be allayed from the are : Firstly, complaints are handled
minds of women so that if and when roughly and are not even such
this crime is committed, the victim attention as is warranted. The
may promptly report the matter to the victims, more often than not, are
police and on a chargesheet being 65 humiliated by the police. The victims
30 submitted, the trial may proceed have invariably found rape trials a
speedily without causing any traumatic experience. The experience
embarrassment to the prosecutrix of giving evidence in court has been
who may come in the witness box negative and destructive. The victims
without fear psychosis. 70 often say, they considered the ordeal
to be even worse than the rape itself.
35 13. We may, at this stage, refer to a
Undoubtedly, the court proceedings
decision of this Court in Delhi

210
 added to and prolonged the (3) The police should be under a duty
psychological stress they had had to to inform the victim of her right to
suffer as a result of the rape itself. In representation before any questions
this background, it is necessary to were asked of her and that the police
5 indicate the broad parameters in 40 report should state that the victim
assisting the victims of rape. (1) The was so informed.
complainants of sexual assault cases
(4) A list of advocates willing to act
should be provided with legal
in these cases should be kept at the
representation. It is important to have
police station for victims who did not
10 some one who is well-acquainted
45 have a particular lawyer in mind or
with the criminal justice system. The
whose own lawyer was unavailable.
role of the victim's advocate would
(5) The advocate shall be appointed
not only be to explain to the victim
by the court, upon application by the
the nature of the proceedings, to
police at the earliest convenient
15 prepare her for the case and to assist
50 movement, but in order to ensure that
her in the police station and in court
victims were questioned without
but to provide her with guidance as
undue delay, advocates would be
to how she might obtain help of a
authorised to act at the police station
different nature from other agencies,
before leave of the court was sought
20 for example, mind counselling or
55 or obtained. (6) In all rape trials
medical assistance. It is important to
anonymity of the victims must be
secure continuity of assistance by
maintained, as far as necessary.
ensuring that the same person who
looked after the complainant's (7) It is necessary, having regard to
25 interests in the police station the Directive Principles contained
represent her till the end of the case. 60 under Article 38(1) of the
Constitution of India to set up
(2) Legal assistance will have to be
Criminal Injuries Compensation
provided at the police station since
Board. Rape victims frequently incur
the victim of sexual assault might
substantial financial loss. Some, for
30 very well be in a distressed state
65 example, are too dramatized to
upon arrival at the police station, the
continue in employment. (8)
guidance and support of a lawyer at
Compensation for victims shall be
this stage and whilst she was being
awarded by the court on conviction
questioned would be of great
of the offender and by the Criminal
35 assistance to her.
70 Injuries Compensation Board
whether or not a conviction has taken

211
 place. The Board will take into offence against basic human rights as
account pain, suffering and shock as also the Fundamental Right of
well as loss of earnings due to Personal Liberty and Life.
pregnancy and the expenses of the
40 Apart from the above, this Court has
5 child but if this occurred as a result
the inherent jurisdiction to pass any
of the rape. In the present situation,
order it consists fit and proper in the
the third respondent will have to
interest of justice or to do complete
evolve such scheme as to wipe out
justice between the parties.
the fears of such unfortunate victims.
10 Such a scheme shall be prepared 45 Having regard to the facts and
within six months from the date of circumstances of the present case in
this judgment. Thereupon, the Union which there is a serious allegation
of India, will examine the same and that Bodhisattwa Gautam had
shall take necessary steps for the married Subhra Chakraborty before
15 implementation of the scheme at the 50 the God he worshiped by putting
earliest." Varmilion on her forehead and
accepting her as his wife and also
This decision recognises the right of
having impregnated her twice
the victim for compensation by
resulting in abortion on both the
providing that it shall be awarded by
55 occasions, we, on being prima-facie
20 the Court on conviction of the
satisfied, dispose of this matter by
offender subject to the finalisation of
providing that Bodhisattwa Gautam
Scheme by the Central Government.
shall pay to Subhra Chakraborty a
If the Court trying an offence of rape
sum of Rs. 1,000/- every month as
has jurisdiction to award the
60 interim compensation during the
25 compensation at the final stage, there
pendency of Criminal Case No. 1/95
is no reason to deny to the Court the
in the court of Judicial Magistrate,
right to award interim compensation
1st Class, Kohima, Nagaland. He
which should also be provided in the
shall also be liable to pay arrears of
Scheme. On the basis of principles
65 compensation at the same rate from
30 set out in the aforesaid decision in
the date on which the complaint was
Delhi Domestic Working Women's
filed till this date. We may further
Forum, the jurisdiction to pay interim
observe that whatever has been said
compensation shall be treated to be
in this Judgment shall not, in any
part of the over all jurisdiction of the
70 way, affect or prejudice the
35 Courts trying the offences of rape
Magistrate from deciding the
which, as pointed out above is an
complaint on merits on the basis of

212
 the evidence as may be tendered
before it and in accordance with law.

30
5

35
10

40
15

45
20

50
25

213
 28. offence under Section 354 of the
Code and the second appellant
Tukaram V State of Maharashtra
AIR 1979 SC 185 35 named Ganpat of one under Section
376 thereof. The sentences imposed
Case Note: by the High Court on the two
5 Criminal - rape - appeal against appellants are rigorous imprisonment
judgment of High Court reversing for a year and 5 years respectively.
judgment of acquittal of appellants of 40 2. Briefly stated, the prosecution case
offence under Section 376 - Sessions is this. Appellant No. 1, who is a
Judge found that there was no Head Constable of police, was
10 satisfactory evidence to prove that M attached to the Desai Gunj police
was below 16 years of age on date of station in March, 1972 and so was
occurrence - High Court convicted 45 appellant No. 2 who is a police
both accused - Apex Court observed constable.
that girl altered her position in regard
15 to such serious allegations at will - 2. Mathura (P.W. 1) is the girl who is
circumstance was not inculpatory - said to have been raped. Her parents
held, charge remains wholly died when she was a child and she is
unproved against appellants. 50 living with her brother, Gama (P.W.
3). Both of them worked as labourers
JUDGMENT to earn a living. Mathura (P.W. 1)
20 A.D. Koshal, J. used to go to the house of Nunshi
(P.W. 2) for work and during the
1. This appeal by special leave is
55 course of her visits to that house,
directed against the judgment dated
came into contact with Ashok, who
the 12th October 1976 of the High
was the sister's son of Nunshi (P.W.
Court of Judicature at Bombay
2) and was residing with the latter.
25 (Nagpur Bench) reversing a
The contact developed into an
judgment of acquittal of the two
60 intimacy so that Ashok and Mathura
appellants of an offence under
(P.W. 1) decided to become husband
Section 376 read with Section 34 of
and wife.
the Indian Penal Code recorded by
30 the Sessions Judge, Chandrapur, on 3. On the 26th of March, 1972, Gama
the 1st of June 1974, and convicting (P.W. 3) lodged report Ex-P8 at
Tukaram, appellant No. 1, of an 65 police station Desai Gunj alleging

214
 that Mathura (P.W. 1) had been 35 private parts. He then dragged her to
kidnapped by Nunshi (P.W. 2), her a chhapri which serves the main
husband Laxman and the said Ashok. building as its back verandah. In the
The report was recorded by Head chhapri he felled her on the ground
5 Constable Baburao (P.W. 8) at whose and raped her in spite of protests and
instance all the three persons 40 stiff resistance on her part. He
complained against as well as departed after satisfying his lust and
Mathura (P.W. 1) were brought to the then Tukaram appellant, who was
police station at about 9 p.m. and seated on a cot nearby, came to the
10 who recorded the statements of the place where Mathura (P.W. 1) was
two lovers. By then it was about 10- 45 and fondled her private parts. He also
30 p.m. and Baburao (P.W. 8) told wanted to rape her but was unable to
them to go after giving them a do so for the reason that he was in a
direction that Gama (P.W. 3) shall highly intoxicated condition.
15 bring a copy of the entry regarding
5. Nunshi (P.W. 2), Gama (P.W. 3)
the birth of Mathura (P.W. 1)
50 and Ashok, who had been waiting
recorded in the relevant register and
outside the police station for Mathura
himself left for his house as he had
(P.W. 1) grew suspicious when they
yet to take his evening meal. At that
found the lights of the police station
20 time the two appellants were present
being turned off and its entrance door
at the police station.
55 being closed from within. They went
4. After Baburao (P.W. 8) had gone to the rear of the police station in
away, Mathura (P.W. 1), Nunshi order to find out what the matter was.
(P.W. 2), Gama (P.W. 3) and Ashok No light was visible inside and when
25 started leaving the police station. The Nunshi (P.W. 2) shouted for Mathura
appellants, however, asked Mathura 60 (P.W. 1) there was no response. The
(P.W. 1) to wait at the police station noise attracted a crowd and some
and told her companions to move time later Tukaram appellant
out. The direction was complied emerged from the rear of the police
30 with. Immediately thereafter Ganpat station and on an enquiry from
appellant took Mathura (P.W. 1) into 65 Nunshi (P.W. 2) stated that the girl
a latrine situated at the rear of the had already left. He himself went out
main building, loosened her under- and shortly afterwards Mathura
wear, lit a torch and stared at her (P.W. 1) also emerged from the rear

215
 of the police station and informed years. A sample of the public hair
Nunshi (P.W. 2) and Gama (P.W. 3) 35 and two vaginal-smear slides were
that Ganpat had compelled her to sent by the doctor in a sealed packet
undress herself and had raped her. to the Chemical Examiner who found
no traces of semen therein. Presence
5 6. Nunshi (P.W. 2) took Mathura
of semen was however detected on
(P.W. 1) to Dr. Khume (P.W. 9) and
40 the girl's clothes and the pyjama
the former told him that the girl was
which was taken off the person of
subjected to rape by a police
Ganpat appellant.
constable and a Head Constable in
10 police station Desai Gunj. The doctor 3. The learned Sessions Judge found
told them to go to the police station that there was no satisfactory
and lodge a report there. 45 evidence to prove that Mathura was
below 16 years of age on the date of
7. A few persons brought Head
the occurrence. He further held that
Constable Baburao (P.W. 8) front his
she was "a shocking liar" whose
15 house. He found that the crowd had
testimony "is riddled with falsehood
grown restive and was threatening to
50 and improbabilities". But he
beat Ganpat appellant and also to
observed that "the farthest one can go
burn down the police station.
into believing her and the
Baburao (P.W. 8), however, was
corroborative circumstances, would
20 successful in persuading the crowd to
be the conclusion that while at the
disperse and thereafter took down the
55 Police Station she had sexual
statement (Ex. 5) of Mathura (P.W.
intercourse and that, in all
1) which was registered as the first
probability, this was with accused
information report.
No. 2." He added however that there
25 8. Mathura (P.W. 1) was examined was a world of difference between
by Dr. Kamal Shastrakar at 8 p.m. on 60 "sexual intercourse" and "rape", and
the 27th of March 1972. The girl had that; rape had not been proved in
no injury on her person. Her hymen spite of the fact that the defence
revealed old ruptures. The vagina version which was a bare denial of
30 admitted two fingers easily. There the allegations of rape, could not be
was no matting of the pubic hair. The 65 accepted at its face value. He further
age of the girl was estimated by the observed : "Finding Nunshi angry
doctor to be between 14 and 16 and knowing that Nunshi would

216
 suspect something fishy, she 35 justified if the view taken by the trial
(Mathura) could not have very well court was reasonably possible, even
admitted that of her own free will, though the High Court was inclined
she had surrendered her body to a to take a different view of the facts. It
5 Police Constable. The crowd agreed with the learned Sessions
included her lover Ashok, and she 40 Judge in respect of his finding with
had to sound virtuous before him. regard to the age of Mathura (P.W. 1)
This is why-this is a possibility-she but then held that the deposition of
might have invented the story of the girl that Ganpat appellant had had
10 having been confined at the Police sexual intercourse with her was
Station and raped by accused No. 45 reliable, supported as it was by
2.... Mathura is habituated to sexual circumstantial evidence, especially
intercourse, as is clear from the that of the presence of stains of
testimony of Dr. Shastrakar, and semen on the clothes of the girl and
15 accused No. 2 is no novice. He Ganpat appellant. The fact that
speaks of nightly discharges. This 50 semen was found neither on the
may be untrue, but there is no reason public hair nor on the vaginal-smears
to exclude the possibility of his taken from her person, was
having stained his Paijama with considered to be of no consequence
20 semen while having sexual by reason of the circumstance that
intercourse with persons other than 55 the girl was examined by the lady
Mathura. The seminal stains on doctor about 20 hours after the event,
Mathura can be similarly accounted and of the probability that she had
for. She was after all living with taken a bath in the meantime. The
25 Ashok and very much in love with High Court proceeded to observe that
him...." and then concluded that the 60 although the learned Sessions Judge
prosecution had failed to prove its was right in saying that there was a
case against the appellants. world of difference between sexual
intercourse and rape, he erred in
4. The High Court took note of the
appreciating the difference between
30 various findings arrived at by the
65 consent and "passive submission". In
Learned Sessions Judge and then
coming to the conclusion that the
itself proceeded to sift the evidence
sexual intercourse in question was
bearing in mind the principle that a
forcible and amounted to rape, the
reversal of the acquittal would not be
High Court remarked :
217
 9. "Besides the circumstances that cannot be equated with the desire or
emerge from the oral evidence on the will, nor can furnish an answer by the
record, we have to see in what mere fact that the sexual act was not
situation Mathura was at the material in opposition to such desire or
5 time. Both the accused were 40 volition.... On the other hand, taking
strangers to her. It is not the case of advantage of the fact that Mathura
the defence that Mathura knew both was involved in a complaint filed by
these accused or any of them since her brother and that she was alone at
before the time of occurrence. It is, the police station at the dead hour of
10 therefore, indeed, highly improbable 45 night, it is more probable that the
that Mathura on her part would make initiative for satisfying the sexual
any overtures or invite the accused to desire must have proceeded from the
satisfy her sexual desire. Indeed it is accused, and that victim Mathura
also not probable that a girl who was must not have been a willing party to
15 involved in a complaint filed by her 50 the act of the sexual intercourse. Her
brother would make such overtures subsequent conduct in making
or advances. The initiative must, statement immediately not only to
therefore, have come from the her relatives but also to the members
accused and if such an initiative of the crowd leave no manner of
20 comes from the accused, indeed she 55 doubt that she was subjected to
could not have resisted the same on forcible sexual intercourse."
account of the situation in which she
10. In relation to Tukaram appellant,
had found herself especially on
the High Court did not believe that
account of a complaint filed by her
he had made any attempt to rape the
25 brother against her which was
60 girl but took her word for granted
pending enquiry at the very police
insofar as he was alleged to have
station. If these circumstances are
fondled her private parts after the act
taken into consideration it would be
of sexual intercourse by Ganpat
clear that the initiative for sexual
appellant.
30 intercourse must have come from the
accused or any of them and she had 65 11. It was in these premises that the
to submit without any resistance.... High Court convicted and sentenced
Mere passive or helpless surrender of the two appellants as aforesaid. The
the body and its resignation to the main contention which has been
35 other's lust induced by threats or fear raised before us on behalf of the
218
 appellants is that no direct evidence advances she could hardly repel all
being available about the nature of by herself and inferred that her
the consent of the girl to the alleged submission to the act of sexual
act of sexual intercourse, the same intercourse must be regarded as the
5 had to be inferred from the available 40 result of fear and, therefore, as no
circumstances and that from those consent in the eye of law. This
circumstances it could not be reasoning suffers from two errors. In
deduced that the girl had been the first place, it loses sight of the
subjected to or was under any fear or fact which was admitted by the girl
10 compulsion such as would justify an 45 in cross-examination and which has
inference of any "passive been thus described in the impugned
submission", and this contention judgment :
appear; to us to be well-based. As
12. "She asserted that after Baburao
pointed out earlier, no marks of
had recorded her statement before the
15 injury were found on the person of
50 occurrence, she and Gama had
the girl after the incident and their
started to leave the police station and
absence goes a long way to indicate
were passing through the front door.
that the alleged intercourse was a
While she was so passing, Ganpat
peaceful affair, and that the story of a
caught her. She stated that she knew
20 stiff resistance having been put up by
55 the name of accused No. 2 as Ganpat
the girl is all false. It is further clear
from Head Constable Baburao while
that the averments on the part of the
giving her report Exh. 5. She stated
girl that she had been shouting loudly
that immediately after her hand was
for help are also a tissue of lies. On
caught by Ganpat she cried out.
25 these two points the learned Sessions
60 However, she was not allowed to
Judge and the High Court also hold
raise' the cry when she was being
the same view. In coming to the
taken to the latrine but was prevented
conclusion that the consent of the girl
from doing so. Even so, she had cried
was a case of "passive submission",
out loudly. She stated that she had
30 the High Court mainly relied on the
65 raised alarm even when the
circumstance that at the relevant time
underwear was loosened at the latrine
the girl was in the police station
and also when Ganpat was looking at
where she would feel helpless in the
her private parts with the aid of torch.
presence of the two appellants who
35 were persons in authority and whose
219
 She stated that the underwear was not 35 satisfying his lust in full, makes us
loosened by her." feel that the consent in question was
not a consent which could be brushed
13. Now the cries and the alarm are,
aside as "passive submission".
of course, a concoction on her part
5 but then there is no reason to 14. Secondly, it has to be borne in
disbelieve her assertion that after 40 mind that the onus is always on the
Baburao (P.W. 8) had recorded her prosecution to prove affirmatively
statement, she and Gama had started each ingredient of the offence it
leaving the police station and were seeks to establish and that such onus
10 passing through the entrance door never shifts. It was, therefore,
when Ganpat appellant caught hold 45 incumbent on it to make out that all
of her and took her away to the the ingredients of Section 375 of the
latrine. And if that be so, it would be Indian Penal Code were present in
preposterous to suggest that although the case of the sexual intercourse
15 she was in the company of her attributed to Ganpat appellant. That
brother (and also perhaps of Ashok 50 section lays down :
and her aunt Nunshi) and had
375. 'A man is said to commit "rape"
practically left the police station, she
who except in the case hereinafter
would be so over-awed by the fact of
excepted, has sexual intercourse with
20 the appellants being persons in
a woman under circumstances falling
authority or the circumstance that she
55 under any of the five following
was just emerging from a police
descriptions :
station that she would make no
attempt at all to resist. On the other First.-Against her will.
25 hand, her natural impulse would be Secondly.-Without her consent.
to shake off the hand that caught her
and cry out for help even before she Thirdly.-With her consent, when her
noticed who her molester was. Her 60 consent has been obtained by putting
failure to appeal to her companions her in fear of death, or of hurt.
30 who were no others than her brother, Fourthly.-With her consent, when the
her aunt and her lover, and her man knows that he is not her
conduct in meekly following Ganpat husband, and that her content is
appellant and allowing him to have 65 given because she believes that he is
his way with her to the extent of another man to whom she is or

220
 believes herself to be lawfully a finding that such fear was shown to
married. be that of death or hurt, and in the
35 absence of such a finding, the alleged
Fifthly.-With or without her consent,
fear would not vitiate the consent.
when she is under sixteen years of
Further, for circumstantial evidence
5 age.
to be used in order to prove an
Explanation.-Penetration is sufficient ingredient of an offence, it has to be
to constitute the sexual intercourse 40 such that it leads to no reasonable
necessary to the offence of rape. inference other than that of guilt. We
have already pointed out that the fear
which clause Thirdly of Section 375
10 Exception.-Sexual intercourse by a speaks of is negatived by the
man with his own wife, the wife not 45 circumstance that the girl is said to
being under fifteen years of age, is have been taken away by Ganpat
not rape.' right from amongst her near and dear
15. The section itself states in clauses ones at a point of time when they
15 Thirdly and Fourthly as to when a were, all leaving the police station
consent would not be a consent 50 together and were crossing the
within the meaning of clause entrance gate to emerge out of it. The
Secondly. For the proposition that circumstantial evidence available,
the requisite consent was lacking in therefore, is not only capable of
20 the present case, reliance on behalf of being construed in a way different
the State can be placed only on 55 from that adopted by the High Court
clause Thirdly so that it would have but actually derogates in no uncertain
to be shown that the girl had been put measure from the inference drawn by
in fear of death or hurt and that that it.
25 was the reason for her consent. To 6. In view of what we have said
this aspect of the matter the High 60 above, we conclude that the sexual
Court was perhaps alive when it intercourse in question is not proved
talked of "passive submission" but to amount to rape and that no offence
then in holding that the is brought home to Ganpat appellant.
30 circumstances available in the
present case make out a case of fear 7. The only allegation found by the
on the part of the girl, it did not give 65 High Court to have been brought
home to Tukaram appellant is that he
221
 fondled the private parts, of the girl 8. In the result, the appeal succeeds
after Ganpat had left her. The High 35 and is accepted. The judgment of the
Court itself has taken note of the fact High Court is reversed and the
that in the first information report conviction recorded against as well
5 (Ex. 5) the girl had made against as, the sentences imposed upon the
Tukaram serious allegations on appellants by it are set aside.
which she had gone back at the trial
40
and the acts covered by which she
attributed in her deposition to Ganpat
10 instead. Those allegations were that
Tukaram who had caught hold of her
in the first instance, had taken her to
the latrine in the rear of the main
building, had lit a torch and had
45
15 stared at her private parts in the
torch-light. Now if the girl could
alter her position in regard to these
serious allegations at will, where is
the assurance that her word is truthful
20 in relation to what she now says
about Tukaram ? The High Court 50
appears to have been influenced by
the fact that Tukaram was present at
the police station when the incident
25 took place and that he left it after the
incident. This circumstance, in our
opinion, is not inculpatory and is
capable of more explanations than 55
one. We do not, therefore, propose to
30 take the girl at her word in relation to
Tukaram appellant and hold that the
charge remains wholly unproved
against him.

60

222
 29. was located in the Boys High School,
Pakhowal. On 30th March, 1984 at
State of Punjab v. Gurmit Singh –
about 12.30 p.m. after taking her test
AIR 1996 SC 1393
in Geography, the prosecutrix was
DR. ANAND, J. 40 going to the house of her maternal
5 1. This appeal under Sec. 14 of the uncle, Darshan Singh, and when she
Terrorist Affected Areas (Special had covered a distance of about 100
Courts) Act, 1984 is directed against karmas from the school, a blue
the judgment and order of Additional ambassador car being driven by a
Judge, Special Court, Ludhiana 45 sikh youth aged 20/25 years came
10 Dated 1.6.1985 by which the from behind. In that car Gurmit
respondents were acquitted of the Singh, Jagjit Singh @ Bawa and
charge of abduction and rape. For Ranjit Singh accused were sitting.
what follows, the judgment The car stopped near her. Ranjit
impugned in this appeal, presents a 50 Singh accused came out of the car
15 rather disquietening and a disturbing and caught hold of the prosecutrix
feature. It demonstrates lack of from her arm and pushed her inside
sensitivity on the part of the court by the car. Accused Jagjit Singh @
casting unjustified stigmas on a Bawa put his hand on the mouth of
prosecutrix aged below 16 years in a 55 the prosecutrix, while Gurmit Singh
20 rape case, by overlooking human accused threatened the prosecutrix,
psychology and behavioral that in case she raised an alarm she
probabilities. An intrinsically wrong would be done to death. All the three
approach while appreciating the accused (respondents herein) drove
testimonial potency of the evidence 60 her to the tubewell of Ranjit Singh
25 of the prosecutrix has resulted in accused. She was taken to the `kotha'
miscarriage of justice. First a brief of the Tubewell. The driver of the car
reference to the prosecution case: after leaving the prosecutrix and the
three accused persons there went
2. The prosecutrix (name withheld by 65 away with the car. In the said kotha
us), a young girl below 16 years of Gurmit Singh compelled the
30 age, was studying in the 10th class at prosecutrix to take liquor,
the relevant time in Government misrepresenting to her that it was
High School, Pakhowal. The juice. Her refusal did not have any
matriculation examinations were 70 effect and she reluctantly consumed
going on at the material time. The liquor. Gurmit Singh then got
35 examination centre of the prosecutrix removed her salwar and also opened

223
 her shirt. She was made to lie on a Singh PW6 was not present in the
cot in the kotha while his house at that time. He returned from
companions guarded the kotha from 40 his work late in the evening. The
outside. Gurmit Singh committed mother of the prosecutrix, Smt.
5 rape upon her. She raised rule as she Gurdev kaur PW7, narrated the
was suffering pain but Gurmit Singh episode to her husband Tirlok Singh
threatened to kill her if she persisted PW6 on his arrival. Her father
in raising alarm. Due to that threat, 45 straightaway contacted Sarpanch
she kept quiet. After Gurmit Singh Joginder Singh of the village. A
10 had committed rape upon her, the panchayat was convened. Matter was
other two accused, who were earlier brought to the notice of the Sarpanch
guarding the kotha from outside, of village Pakhowal also. Both the
came in one by one, and committed 50 Sarpanches, tried to affect a
rape upon her. Jagjit Singh alias compromise on 1.4.1984 but since
15 bawa committed rape on her after the panchayat could not give any
Gurmit Singh and thereafter Ranjit justice of relief to the prosecutrix,
Singh committed rape on her. Each she alongwith her father proceeded to
one of the accused committed sexual 55 the police station Raikot to lodge a
intercourse with the prosecutrix report about the occurrence with the
20 forcibly and against her will. They all police. When they reached at the bus
subjected her to sexual intercourse adda of village Pakhowal, the police
once again during the night against met them and she made her
her will. Next morning at about 6.00 60 statement, Ex. PD, before ASI
a.m., the same car arrived at the Raghubir Chand PW who made an
25 tubewell kotha of Ranjit Singh and endorsement, Ex. PD/1 and sent the
the three accused made her to sit in statement Ex. PD of the prosecutrix
that car and left her near the Boys to the police station Raikot for
High School, Pakhowal near about 65 registration of the case on the basis
the place from where she had been of which formal FIR Ex. PD/2 was
30 abducted. The prosecutrix had to take registered by SI Malkiat Singh. ASI
her examination in the subject of Raghubir Chand then took the
Hygiene on that date. She, after prosecutrix and her mother to the
taking her examination in Hygeine, 70 primary health centre Pakhowal for
reached her village Nangal- Kalan, at medical examination of the
35 about noon time and narrated the prosecutrix. She was medically
entire story to her mother, Smt. examined by lady doctor Dr.
Gurdev Kaur, PW7. Her father Trilok Sukhwinder Kaur, PW1 on 2.4.84,

224
 who found that the hymen of the and Ranjit Singh were produced
prosecutrix was lacerated with fine before the investigating officer by
rediate tears, swollen and painful. Gurbachan Singh and Jagjit Singh on
Her pubic hair were also found 40 the same day were produced before
5 mated. According to PW1 Dr. B.L. Bansal PW3 for medical
intercourse with the prosecutrix examination. The doctor opined that
could be "one of the reasons for both the accused were fit to perform
laceration which I found in her sexual intercourse. Gurmit Singh
hymen". She went on to say that the 45 respondent was arrested on 9.4.1984
10 possibility could not be ruled out that by SI Malkiat Singh. He was also got
the prosecutrix "was not habitual to medically examined on 9.4.1984
intercourse earlier." from Dr. B.L. Bansal PW3 who
opined that Gurmit Singh was also fit
3. During the course of investigation,
50 to perform sexual intercourse. The
the police took into possession a
sealed parcels containing the slides
15 sealed percel handed over by the lady
of vaginal smears, the pubic hair and
doctor containing the salwar of the
the salwar of the prosecutrix, were
prosecutrix alongwith 5 slides of
sent to the chemical examiner. The
vaginal smears and one sealed phial
55 report of the chemical examiner
containing pubic hair of the
revealed that semen was found on the
20 prosecutrix, vide memo Ex. PK. On
slides of vaginal smear though no
the pointing out of the prosecutrix,
spermatozoa was found either on the
the investigating officer prepared the
pubic hair or the salwar of the
rough site plan Ex. PF, of the place
60 prosecutrix. On completion of the
from where she had been abducted.
investigation, respondents were
25 The prosecutrix also led the
challaned and were charged for
investigating officer to the tubewell
offences under Sec. 363, 366, 368,
kotha of Ranjit Singh where she had
376 IPC.
been wrongfully confined and raped.
The investigating officer prepared a 65 4. With a view to connect the
30 rough site plan of the Kotha Ex. PM. respondents with the crime, the
A search was made for the accused prosecution examined Dr.
on 2.4.1984 but they were not found. Sukhwinder Kaur, PW1; Prosecutrix,
They were also not traceable on PW2; Dr. B.L. Bansal, PW3; Tirlok
3.4.1984, inspite of a raid being 70 Singh, father of the prosecutrix,
35 conducted at their houses by the ASI. PW6; Gurdev Kaur, mother of the
On 5.4.1984 Jagjit Singh alias Bawa prosecutrix, PW7; Gurbachan Singh,

225
 PW8; Malkit Singh, PW9 and SI the next day had given beating to
Raghubir hand PW10, besides, some Tirlok Singh, PW6 and also abused
formal witnesses like the draftsman 40 him and on that account Tirlok Singh
etc. The prosecution tendered in PW, in consultation with the police
5 evidence affidavits of some of the had got him falsely implicated in the
constables, whose evidence was of a case. Ranjit Singh respondent also
formal nature as also the report of the alleged false implication but gave no
chemical examiner, Ex. PM. In their 45 reasons for having been falsely
statements recorded under Sec. 313 implicated. Jagjit Singh alias Bawa
10 Cr. P.C. the respondents denied the produced DW-1 Kuldip Singh and
prosecution allegations against them. DW-2 MHC, Amarjit Singh in
Jagjit Singh respondent stated that it defence and tendered in evidence Ex.
was a false case foisted on him on 50 DC, a photostat copy of his passport
account of his enemity with the and Ex. DD copy of a certificate of
15 Sarpanch of village Pakhowal. He his marriage with the Canadian girl.
stated that he had married a Canadian He also tendered into evidence
girl in the village Gurdwara, which photographs marked `C' and `D',
was not liked to by the sarpanch and 55 evidencing his marriage with the
therefore the sarpanch was hostile to Canadian girl. The other two accused
20 him and had got him falsely however did not lead any defence
implicated in this case. Gurmit Singh evidence.
-respondent took the stand that he
5. The trial court first dealt with the
had been falsely implicated in the
60 prosecution case relating to the
case on account of enemity between
abduction of the prosecutrix by the
25 his father and Tirlok Singh, PW6,
respondents and observed:
father of the prosecutrix. He stated
that there was long standing litigation "The first point for appreciation
going on between his father and the before me would arise whether this
father of the prosecutrix and their 65 part of the prosecution story stands
30 family members were not even on fortified by any cogent or reliable
speaking terms with each other. He evidence or not. There is a bald
went on to add that on 1.4.1984 he allegation only of (prosecutrix-name
was given beating by Tirlok Singh omitted) that she was forcibly
PW6, on grounds of suspicion that he 70 abducted in a car. In the F.I.R she
35 might have instigated some persons stated that she was abducted in an
to abduct his daughter and in Ambassador Car of blue colour.
retaliation he and his elder brother on After going through the evidence, I

226
 am of the view that this thing has possession allegedly used in the
been introduced by the prosecutrix or occurrence. He could not find out the
by their father or by the thanedar just 40 name of the driver nor could he find
to give the gravity of offence. out which car was used. In these
5 (Prosecutrix name omitted) was circumstances, it looks to be
tested about the particulars of the car improbable that any car was also
and she is so ignorant about the make used in the alleged abduction".
etc. of the car that entire story that 45 (Omission of name of the prosecutris
she was abducted in the car becomes - ours) The trial court further
10 doubtful. She stated in her cross- commented: "On 30th March, 1984
examination at page No.8 that the she was forcibly abducted by four
make of the car was Master. She was desperate persons who were out and
pertinently asked whether the make 50 out to molest her honour. It has been
of the car was Ambassador of Fiat. admitted by the prosecutrix that she
15 The witness replied that she cannot was taken through the bus adda of
tell the make of the car. But when Pakhowal via metalled road. It has
she was asked as to the difference come in the evidence that it is a busy
between Fiat, Ambassador or Master 55 center. Inspite of that fact she has not
car, she was unable to explain the raised any alarm, so as to attract
20 difference amongst these vehicles. persons that she was being forcibly
So, it appears that the allegations that taken. The height of her own
she was abducted in a Fiat Car by all unnatural conduct is that she was left
the three accused and the driver, is an 60 by the accused at the same point on
imaginary story which has been the next morning. The accused would
25 given either by the thanedar of by the be the last person to extend sympathy
father of the prosecutrix." "If the to the prosecutrix. Had it been so, the
three known accused are in the natural conduct of the prosecutrix
clutches of the police, it is not 65 was first torush to the house of her
difficult for the I.O. to come to know maternal uncle to apprise him that
30 about the car, the name of its driver she had been forcibly abducted on
etc., but strange enough, SI Raghubir the previous day. The witness after
Chand has shown pitiable negligence her being left at the place of
when he could not find out the car 70 abduction lightly takes her
driver inspite of the fact that he examination. She does not complain
35 directed the investigation on these to the lady teachers who were
lines. He had to admit that he made deployed to keep a watch on the girl
search for taking the car into students because these students are to

227
 appear in the center of Boys School. the record and that the story that the
She does not complain to anybody accused had left her near the school
nor her friend that she was raped next morning was not believable
during the previous night. She 40 because the accused could have no
5 prefers her examination rather than to "sympathy" for her.
go to the house of her parents or
The trial court also disbelieved the
relations. Thereafter, she goes to her
version of the prosecutrix regarding
village Mangal Kalan and informs
rape. It found that the testimony of
for the first time her mother that she
45 the prosecutrix did not inspire
10 was raped on the previous night. This
confidence for the reasons
part of the prosecution story does not
look to be probable." (i) that there had been delay in
lodging the FIR and as such the
6. The trial court, thus, disbelieved
chances of false implication of the
the version of the prosecutrix
50 accused could not be ruled out.
15 basically for the reasons; (i) "she is
According to the trial court Trilok
so ignorant about the make etc. of the
Singh PW6 became certain on 1.4.84
car that entire story that she was
that there was no outcome of the
abducted in the car becomes
meeting between the panchayats of
doubtful" particularly because she
55 Nangalkhurd and Pakhowal therefore
20 could not explain the difference
there was no justification for him not
between a Fiat car, Ambassador car
to have lodged the report on 1.4.84
or a Master car; (ii) the investigating
itself and since Trilok Singh had "
officer had "shown pitiable
entered into consultations with his
negligence" during the investigation
60 wife as to whether to lodge the report
25 by not tracing out the car and the
or not, it rendered the matter
driver;
doubtful." (ii) that the medical
(iii) that the prosecutrix did not raise evidence did not help the prosecution
any alarm while being abducted even case. The trial court observed that in
though she had passed through the 65 her cross-examination PW1 lady
30 bus adda of village Pakhowal (iv) doctor had admitted that whereas
that the story of abduction" has been inter-course with the prosecutrix
introduced by the prosecutrix or by could be one of the reasons for the
her father or by the thanedar just to laceration of the hymen "there could
give the gravity of offence" and (v) 70 be other reasons also for that
35 that no corroboration of the statement laceration". The trial court noticed
of the prosecutrix was available on that the lady doctor had inserted a

228
 vaginal speculum for taking swabs material effect on the reliability of
from the posterior vaginal fornix of her testimony. No fault could also be
the prosecutrix for preparing slides found with the prosecution version
and since the width of the speculum 40 on the ground that the prosecutrix
5 was about two fingers, the possibility had not raised an alarm while being
that the prosecutrix was habituated to abducted. The prosecutrix in her
sexual inter-course could not be ruled statement categorically asserted that
out". The trial court observed that the as soon as she was pushed inside the
prosecutrix was "flighting her 45 car5 she was threatened by the
10 imagination in order to rope in the accused to keep quiet and not to raise
accused persons" and that implicit any alarm otherwise she would be
reliance could not be placed on the killed. Under these circumstances to
testimony "of such a girl"; (iii) there discredit the prosecutrix for not
was no independent corroboration of 50 raising an alarm while the car was
15 her testimony and (iv) that the passing through the Bus Adda is
accused had been implicated on traverisity of justice. The court over-
account of enemity as alleged by the looked the situation in which a poor
accused in their statements recorded helpless minor girl had found herself
under Sec. 313 Cr. P.C. 55 in the company of three desperate
young men who were threatening her
20 7. The grounds on which the trial
and preventing her from raising any
court disbelieved the version of the
alram. Again, if the investigating
prosecutrix are not at all sound. The
officer did not conduct the
findings recorded by the trial court
60 investigation properly or was
rebel against realism and lose their
negligent in not being able to trace
25 sanctity and credibility. The court
out the driver or the car, how car that
lost sight of the fact that the
become a ground to discredit the
prosecutrix is a village girl. She was
testimony of the prosecutrix? The
a student of Xth Class. It was wholly
65 prosecutrix had no control over the
irrelevant and immaterial whether
investigating agency and the
30 she was ignorant of the difference
negligence of an investigating officer
between a Fiat, an Ambassador or a
could not affect the credibility of the
Master car. Again, the statement of
statement of the prosecutrix. Trial
the prosecutrix at the trial that she
70 Court fell in error for discrediting the
did not remember the colour of the
testimony of the prosecutrix on that
35 car, though she had given the colour
account. In our opinion, there was no
of the car in the FIR was of no
delay in the lodging of the FIR either

229
 and if at all there was some delay, the to lodge a report with the police in
same has not only been properly view of the repercussions it might
explained by the prosecution but in 40 have on the reputation and future
the facts and circumstances of the prospects of the marriage etc. of their
5 case was also natural. The courts daughter. Trilok Singh PW6
cannot over-look the fact that in truthfully admitted that he entered
sexual offences delay in the lodging into consultation with his wife as to
of the FIR can be due to variety of 45 whether to lodge a report or not and
reasons particularly the reluctance of the trial court appears to have
10 the prosecutrix or her family misunderstood the reasons and
members to go to the police and justification for the consultation
complain about the incident which between Trilok Singh and his wife
concerns the reputation of the 50 when it found that the said
prosecutrix and the honour of her circumstance had rendered the
15 family. It is only after giving it a cool version of the prosecutrix doubtful.
thought that a complaint of sexual Her statement about the manner in
offence is generally lodged. The which she was abducted and again
prosecution has explained that as 55 left near the school in the early hours
soon as Trilok Singh PW6, father of of next morning has a ring of truth. It
20 the prosecutrix came to know from appears that the trial court searched
his wife, PW7 about the incident he for contradictions and variations in
went to the village sarpanch and the statement of the prosecutrix
complained to him. The sarpanch of 60 microscopically, so as to disbelieve
the village also got in touch with the her version. The observations of the
25 sarpanch of village Pakhowal, where trial court that the story of the
in the tube well kotha of Ranjit Singh prosecutrix that she was left near the
rape was committed, and an effort examination center next morning at
was made by the panchayats of the 65 about 6 a.m. was "not believable" as
two villages to sit together and settle `the accused would be the last
30 the matter. It was only when the persons to extend sympathy to the
Panchayats failed to provide any prosecutrix" are not at all intelligible.
relief or render any justice to the The accused were not showing "any
prosecutrix, that she and her family 70 sympathy" to the prosecutrix while
decided to report the matter to the driving her at 6.00 a.m. next morning
35 police and before doing that naturally to the place from where she had been
the father and mother of the addicted but on the other hand were
prosecutrix discussed whether or not removing her from the kotha of

230
 Ranjit Singh and leaving her near the Therefore, her informing to her
examination center so as to avoid mother only on return to the parental
being detected. The criticism by the 40 house and no one else at the
trial court of the evidence of the examination center prior thereto is an
5 prosecutrix as to why she did not accord with the natural human
complain to the lady teachers or to conduct of a female. The courts must,
other girl students when she appeared while evaluating evidence, remain
for the examination at the center and 45 alive to the fact that in a case of rape,
waited till she went home and no self-respecting woman would
10 narrated the occurrence to her mother come forward in a court just to make
is unjustified. The conduct of the a humiliating statement against her
prosecutrix in this regard appears to honour such as is involved in the
us to be most natural. The trial court 50 commission of rape on her. In cases
over-looked that a girl, in a tradition involving sexual molestation,
15 bound non-permissive society in supposed considerations which have
India, would be extremely reluctant no material effect on the veracity of
even to admit that any incident which the prosecution case or even
is likely to reflect upon her chastity 55 discrepancies in the statement of the
had occurred, being conscious of the prosecutrix should not, unless the
20 danger of being ostracized by the discrepancies are such which are of
society or being looked down by the fatal nature, be allowed to throw out
society. Her not informing the an otherwise reliable prosecution
teachers or her friends at the 60 case. The inherent bashfulness of the
examination center under the females and the tendency to conceal
25 circumstances cannot detract from outrage of sexual aggression are
her reliability. In the normal course factors which the Courts should not
of human conduct, this unmarried over-look. The testimony of the
minor girl, would not like to give 65 victim in such cases is vital and
publicity to the traumatic experience unless there are compelling reasons
30 she had undergone and would feel which necessitate looking for
terribly embarrassed in relation to the corroboration of her statement, the
incident to narrate it to her teachers courts should find no difficulty to act
and others over-powered by a feeling 70 on the testimony of a victim of
of shame and her natural inclination sexual assault alone to convict an
35 would be to avoid talking about it to accused where her testimony inspires
any one, lest the family name and confidence and is found to be
honour is brought into controversy. reliable. Seeking corroboration of her

231
 statement before relying upon the under given circumstances. It must
same, as a rule, in such cases not be over-looked that a woman or a
amounts to adding insult to injury. 40 girl subjected to sexual assault is not
Why should the evidence of a girl of an accomplice to the crime but is a
5 a woman who complains of rape or victim of another persons's lust and it
sexual molestation, be viewed with is improper and undesirable to test
doubt, disbelief or suspicion? The her evidence with a certain amount of
Court while appreciating the 45 suspicion, treating her as if she were
evidence of a prosecutrix may look an accomplice. Inferences have to be
10 for some assurance of her statement drawn from a given set of facts and
to satisfy its judicial conscience, circumstances with realistic diversity
since she is a witness who is and not dead uniformity lest that type
interested in the outcome of the 50 of rigidity in the shape of rule of law
charge levelled by her, but there is no is introduced through a new form of
15 requirement of law to insist upon testimonial tyranny making justice a
corroboration of her statement to casualty. Courts cannot cling to a
base conviction of an accused. The fossil formula and insist upon
evidence of a victim of sexual assault 55 corroboration even if, taken as a
stands almost at par with the whole, the case spoken of by the
20 evidence of an injured witness and to victim of sex crime strikes the
an extent is even more reliable. Just judicial mind as probable. In State of
as a witness who has sustained some Maharashtra Vs. Chandraprakash
injury in the occurrence, which is not 60 Kewalchand Jain (1990 (1) SCC
found to be self inflicted, is
550) Ahmadi, J. (as the Lord Chief
25 considered to be a good witness in
Justice then was) speaking for the
the sense that he is least likely to
Bench summarised the position in the
shield the real culprit, the evidence of
following words:
a victim of a sexual offence is
entitled to great weight, absence of 65 8. "A prosecutrix of a sex offence
30 corroboration notwithstanding. cannot be put on par with an
Corroborative evidence is not an accomplice. She is in fact a victim of
imperative component of judicial the crime. The Evidence Act
credence in every case of rape. nowhere says that her evidence
Corroboration as a condition for 70 cannot be accepted unless it is
35 judicial reliance on the testimony of corroborated in material particulars.
the prosecutrix is not a requirement She is undoubtedly a competent
of law but a guidance of prudence witness under Sec. 118 and her

232
 evidence must receive the same the circumstances appearing on the
weight as is attached to an injured in record of the case disclose that the
cases of physical violence. The same prosecutrix does not have a strong
degree of care and caution must 40 motive to falsely involve the person
5 attach in the evaluation of her charged, the court should ordinarily
evidence as in the case of an injured have no hesitation in accepting her
complainant or witness and no more. evidence."
What is necessary is that the court
We are in respectful agreement with
must be alive to and conscious of the
45 the above exposition of law. In the
10 fact that it is dealing with the
instant case our careful analysis of
evidence of a person who is
the statement of the prosecutrix has
interested in the outcome of the
created an impression on our minds
charge levelled by her. If the court
that she is a reliable and truthful
keeps this in mind and feels satisfied
50 witness. Her testimony suffers from
15 that it can act on the evidence of the
no infirmity or blemish whatsoever.
prosecutrix, there is no rule of law or
We have no hesitation in acting upon
practice incorporated in the Evidence
her testimony alone withoutlooking
Act similar to illustration
for any `corroboration'. However, in
(b) to Sec. 114 which requires it to 55 this case there is ample corroboration
20 look for corroboration. If for some available on the record to lend further
reason the court is hesitant to place credence to the testimony of the
implicit reliance on the testimony of prosecutrix.
the prosecurtix it may look for
The medical evidence has lent full
evidence which may lend assurance
60 corroboration to the testimony of the
25 to her testimony short of
prosecutrix. According to PW1 lady
corroboration required in the case of
Doctor Sukhvinder Kaur she had
an accomplice. The nature of
examined the prosecutrix on 2.4.84 at
evidence required to lend assurance
about 7.45 p.m. at the Primary Health
to the testimony of the prosecutrix
65 Center, Pakhowal, and had found that
30 must necessarily depend on the facts
"her hymen was lacerated with fine
and circumstances of each case. But
rediate tears, swollen and painful".
if a prosecutrix is an adult and of full
The pubic hair were also found
understanding the court is entitled to
mated. She opined that inter-course
base a conviction of her evidence
70 with the prosecutrix could be "one of
35 unless the same is shown to be infirm
the reason for the laceration of the
and not trustworthy. If the totality of
hymen" of the prosecutrix. She also

233
 opined that the "possibility cannot be she was "a girl of loose character".
ruled out that (prosecutrix) was not There was no warrant for such a
habitual of inter-course earlier to her 40 finding and the finding if we may say
examination by her on 2.4.84". so with respect, is a wholly
5 During her cross-examination, the irresponsible finding. In the face of
lady doctor admitted that she had not the evidence of PW1, the trial court
inserted her fingers inside the vagina wrongly concluded that the medical
of the prosecutrix during the medico- 45 evidence had not supported the
legal examination but that she had version of the prosecutrix.
10 put a vaginal speculum for taking the
9. The trial court totally ignored the
swabs from the posterior vaginal
report of the Chemical Examiner Ex.
fornix for preparing the slides. She
PM, according to which semen had
disclosed that the size of the
50 been found on the slides which had
speculum was about two fingers and
been prepared by the lady doctor
15 agreed with the suggestion made to
from the vaginal secretions from the
her during her cross-examination that
posterior of the vaginal fornix of the
"if the hymen of a girl admits two
prosecutrix. The presence of semen
fingers easily, the possibility that
55 on the slides lent authentic
such a girl was habitual to sexual
corroboration to the testimony of the
20 inter- course cannot be ruled out".
prosecutrix. This vital evidence was
However, no direct and specific
foresaken by the trial court and as a
question was put by the defence to
result wholly erroneous conclusions
the lady doctor whether the
60 were arrived at. Thus, even though
prosecutrix in the present case could
no corroboration is necessary to rely
25 be said to be habituated to sexual
upon the testimony of the
intercourse and there was no
prosecutrix, yet sufficient
challenge to her statement that the
corroboration from the medical
prosecutrix `may not have been
65 evidence and the report of the
subjected to sexual intercourse
chemical examiner is available on the
30 earlier'. No enquiry was made from
record. Besides, her statement has
the lady doctor about the tear of the
been fully supported by the evidence
hymen being old. Yet, the trial court
of her father, Tirlok Singh, PW6 and
interpreted the statement of PW1
70 her mother Gurdev Kaur, PW7, to
Dr.Sukhwinder Kaur to hold that the
whom she had narrated the
35 prosecutrix was habituated to sexual
occurrence soon after her arrival at
inter-course since the speculum could
her house. Moreover, the
enter her vagina easily and as such

234
 unchallanged fact that it was the connection it observed that since
prosecutrix who had led the Trilok Singh PW6 had given beating
investigating officer to the Kotha of to Gurmit Singh on 1.4.84 suspecting
the tubewell of Ranjit Singh, where 40 his hand in the abduction of his
5 she had been raped, lent a built-in daughter and Gurmit Singh accused
assurance that the charge levied by and his elder brother had abused
her was "genuine" rather than Trilok Singh and given beating to
"fabricated" because it is no one's Tirlok Singh PW6 on on 2.4.84, "it
case that she knew Ranjit Singh 45 was very easy on the part of Trilok
10 earlier or had ever seen or visited the Singh to persuade his daughter to
kotha at his tubewell. The trial court name Gurmit Singh so as to take
completely overlooked this aspect. revenge". The trial court also found
The trial court did not disbelieve that that the relations between the family
the prosecutrix had been subjected to 50 of Gurmit Singh and of the
15 sexual intercourse but without any prosecutrix were strained on account
sound basis, observed that the of civil litigation pending between
prosecutrix might have spent the the parties for 7/8 years prior to the
"night" in the company of some date of occurrence and that was also
"persons" and concocted the story on 55 the `reason' to falsely implicate
20 being asked by her mother as to Gurmit Singh. Indeed, Gurmit Singh
where she had spent the night after accused in his statement under Sec.
her maternal uncle, Darshan Singh, 313 Cr. P.C. did raise such a plea but
came to Nangal-Kalan to enquire that plea has remained
about the prosecutrix. There is no 60 unsubstantiated. Trilok Singh PW6
25 basis for the finding that the categorically denied that he had any
prosecutrix had spent the night in the litigation with the father of Gurmit
company of "some persons" and had Singh at all and went on to say that
indulged in sexual intercourse with no litigation had ever taken place
them of her own free will. The 65 between him and Mukand Singh
30 observations were made on surmises father of Gurmit singh over a piece
and conjectures - the prosecutrix was of land or otherwise. To the similar
condemned unheard. effect is the statement of Gurdev
Kaur PW7 who also categorically
10. The trial court was of the opinion
70 stated that there had been no
that it was a `false' case and that the
litigation between her husband and
35 accused had been implicated on
Mukand Singh father of Gurmit
account of enemity. In that
Singh. The trial court ignored this

235
 evidence and found support for the unnecessarily blown out of all
plea of the accused from the proportion to hold that "admittedly"
statement of the prosecutrix in which 40 PW6 had been given given beating
during the first sentence of her cross- by Gurmit Singh accused and that
5 examination she admitted that there was civil litigation pending
litigation was going on between between the father of the prosecutrix
Mukund Singh father of Gurmit and the father of Gurmit Singh to
Singh and her father for the last 8/9 45 show that the relations between the
years over a piece of land. In what parties were enemical. There is no
10 context the statement was made is acceptable material on the record to
not clear. Moreover, the positive hold that there was any such civil
evidence of PW6 and PW7 that there litigation pending between the
was no litigation pending between 50 parties. Even if it be assumed for the
PW6 and PW7 that there was no sake of argument that there was some
15 litigation pending between PW6 and such litigation, it could hardly be a
the father of Gurmit Singh ground for a father to put forth his
completely belied the plea of the daughter to make a wild allegation of
accused. If there was any civil 55 rape against the son of the opposite
litigation pending between the parties party, with a view to take revenge. It
20 as alleged by Gurmit Singh he could defies human probabilities. No father
have produced some documentary could stoop so low as to bring forth a
proof in support thereof but none was false charge of rape on his unmarried
produced. Even Mukand Singh, 60 minor daughter with a view to take
father of Gurmit Singh did not revenge from the father of an accused
25 appear in the witness box to support on account of pending civil litigation.
the plea taken by Gurmit Singh. The Again, if the accused could be falsely
allegation regarding any beating involved on account of that enemity,
given to Gurmit Singh by PW6 and 65 it was equally possible that the
to PW6 by Gurmit Singh and his accused could have sexually
30 brother was denied by PW6 and no assaulted the prosecutrix to take
material was brought forth in support revenge from her father, for after all,
of that plea either and yet the trial enemity is a double edged weapon,
court for undisclosed reasons 70 which may be used for false
assumed that the story regarding the implication as well as to take
35 beating was correct. Some stray revenge. In any case, there is no
sentences in the statement of the proof of the existence of such
proseuctrix appear to have been enemity between PW6 and the father

236
 of Gurmit Singh which could have did not merit acceptance and the trial
prompted PW6 to put up his daughter court erroneously accepted the same
to falsely implicate Gurmit Singh on 40 without any basis. The Plea of the
a charge of rape. The trial court was accused was a plea of despair not
5 in error to hold that Gurmit Singh worthy of any credence. Ranjit
had been implicated on account of Singh, apart from stating that he had
enemity between the two families beenfalsely implicated in the case did
and for the beating given by Gurmit 45 not offer any reasons for his false
Singh and his brother to PW6, in implication. It was at his tubewell
10 retaliation of the beating given by kothe that rape had been committed
PW6 to Gurmit Singh on 1.4.1984. on the prosecutrix. She had pointed
Similarly, so far as Jagjit Singh out that kotha to the police during
respondent is concerned, the trial 50 investigation. No ostensible rason
court opined that he could have been has been suggested as to why the
15 got implicated at the instance of the prosecutrix would falsely involve
Sarpanch of village Pakhowal, who Ranjit Singh for the commission of
was hostile to Jagjit Singh. The such a heinous crime and nominate
ground of hostility as given by Jagjit 55 his kotha as the place where she had
Singh against the Sarpanch of village been subjected to sexual molestation
20 Pakhowal stems out of the fact that by the respondents. The trial court
the sarpanch was annoyed with him ignored that it is almost
for marrying a Canadian girl in the inconceivable that an unmarried girl
village Gurdwara. There is no 60 and her parents would go to the
evidence whatsoever on the record to extent of staking their reputation and
25 show that the Sarpanch of village future in order to falsely set up a case
Pakhowal had any relationship of of rape to settle petty scores as
connection with the prosecutrix or alleged by Jagjit Singh and Gurmit
her father or was in any way in a 65 Singh respondents.
apposition to exhert so much of
11. From the statement of the
30 incluence on the prosecutrix or her
prosecutrix, it clearly emerges that
family, that to settle his score Trilok
she was abducted and forcibly
Singh PW6 would put forward his
subjected to sexual intercourse by the
daughter to make a false allegation of
70 three respondents without her
rape and thereby jeopardise her own
consent and against her will. In this
35 honour and future prospects of her
fact situation the question of age of
marriage etc. The plea of Jagjit Singh
the prosecutrix would pale into
alias Bawa like that of Gurmit Singh

237
 insignificance. However, in the a belated explanation. That apart,
present case, there is evidence on the even according to the lady doctor
record to establish that on the date of 40 PW1, the clinical examination of the
the occurrence, the prosecutrix was prosecutrix established that she was
5 below 16 years of age. The less than 16 years of age on the date
prosecutrix herself and her parents of the occurrence. The birth
deposed at the trial that her age was certificate Ex. PJ was not only
less than 16 years on the date of the 45 supported by the oral testimony of
occurrence. Their evidence is Trilok Singh PW6 and Gurdev Kaur
10 supported by the birth certificate Ex. PW7 but also by that of the school
PJ. Both Tirlok Singh PW6 and leaving certificate mark `B'. With a
Gurdev Kaur PW7, the father and view to do complete justice, the trial
mother of the prosecutrix 50 court could have summoned the
respectively, explained that initially concerned official from the school to
15 they had named their daughter, the prove various entries in the school
prosecutrix, as Mahinder Kaur but leaving certificate. From the material
her name was changed to .... (name on the record, we have come to an
omitted), as according to The holy 55 unhesitating conclusion that the
Guru Granth Sahib her name was prosecutrix was less than 16 years of
20 required to start with the word age when she was made a victim of
"chhachha" and therefore in the the lust of the respondents in the
school leaving certificate her name manner deposed to by her against her
was correctly given. There was 60 will and without her consent. The
nothing to disbelieve the explanation trial court did not return any positive
25 given by Trilok Singh and Gurdev finding as to whether or not the
Kaur in that behalf. The trial court prosecutrix was below 16 years of
ignored the explanation given by the age on 30th March 1984 and instead
parents observing that "it could not 65 went on to observe that `even
be swallowed being a belated one". assuming for the sake of argument
30 The trial court was in error. The first that the prosecutrix was less than 16
occasion for inquiring from Trilok years of age on 30th March 1984, it
Singh PW6 about the change of the could still not help the case as she
name of the prosecutrix was only at 70 was not a reliable witness and was
the trial when he was asked about Ex. attempting to shield her own conduct
35 PJ and there had been no earlier by indulging in falsehood to
occasion for him to have made any implicate the respondents'. The entire
such statement. It was, therefore, not approach of the trial court in

238
 appreciating the prosecution self- restraint while recording such
evidence and drawing inferences findings which have larger
therefrom was erroneous. repercussions so far as the future of
the victim of the sex crime is
12. The trial court not only
40 concerned and even wider
5 erroneously disbelieved the
implications on the society as a
prosecutrix, but quite uncharitably
whole-where the victim of crime is
and unjustifiably even characterised
discouraged
her as a girl "of loose morals" or
"such type of a girl". - the criminal encouraged and in turn
45 crime gets rewarded! Even in cases,
10 What has shocked our judicial
unlike the present case, where there
conscience all the more is the
is some acceptable material on the
inference drawn by the court, based
record to show that the victim was
on no evidence and not even on a
habituated to sexual intercourse, no
denied suggestion, to the effect:
50 such inference like the victim being a
15 "The more probability is that girl of "loose moral character" is
(prosecutrix) was a girl of loose permissible to be drawn from that
character. She wanted to dupe her circumstance alone. Even if the
parents that she resided for one night prosecutrix, in a given case, has been
at the house of her maternal uncle, 55 promiscuous in her sexual behavior
20 but for the reasons best known to her earlier, she has a right to refuse to
she does not do so and she preferred submit herself to sexual intercourse
to give company to some persons." to anyone and everyone because she
We must express our strong is not a vulnerable object or prey for
disapproval of the approach of the 60 being sexually assaulted by anyone
25 trial court and its casting a stigma on had everyone. No stigma, like the
the character of the prosecutrix. The one as cast in the present case should
observations lack sobriety expected be cast against such a witness by the
of a Judge. Such like stigmas have Courts, for after all it is the accused
the potential of not only discouraging 65 and not the victim of sex crime who
30 an even otherwise reductant victim of is on trial in the Court.
sexual assault to bring forth 13. As a result of the aforesaid
complaint for trial of criminals, discussion, we find that the
thereby making the society to suffer prosecutrix has made a truthful
by letting the criminal escape even a 70 statement and the prosecution has
35 trial. The courts are expected to use established the case against the

239
 respondents beyond every reasonable undergo five years R.I. each and to
doubt. The trial court fell in error in pay a fine of Rs. 5000/- each and in
acquitting them of the charges 40 default of payment of fine to 1 year's
levelled against them. The R.I. each. For the offence under Sec.
5 appreciation of evidence by the trial 363 IPC we sentence them to
court is not only unreasonable but undergo three years R.I. each but
perverse. The conclusions arrived at impose no separate sentence for the
by the trial court are untenable and in 45 offence under Sec. 366/368 IPC. The
the established facts and substantive sentences of
10 circumstances of the case, the view imprisonment shall, however, run
expressed by it is not a possible concurrently.
view. We, accordingly, set aside the
14. This Court, in Delhi Domestic
judgment of the trial court and
50 Working Women's Forum Vs. Union
convict all the three respondents for
of India, (1995 (1) SCC 14), had
15 offences under Sec. 363/366/368 and
suggested, on the formulation of a
376 IPC. So far as the sentence is
scheme, that at the time of conviction
concerned, the court has to strike a
of a person found guilty of having
just balance. In this case the
55 committed the offence of rape, the
occurrence took place on 30.3.1984
Court shall award compensation.
20 (more than 11 years ago). The
respondents were aged between 21- In this case, we have, while
24 years of age at the time when the convicting the respondents, imposed,
offence was committed. We are for reasons already set out above, the
informed that the respondents have 60 sentence of 5 years R.I. with fine of
25 not been involved in any other Rs.5000/- and in default of payment
offence after they were acquitted by of fine further R.I. for one year on
the trial court on 1.6.85, more than a each of the respondents for the
decade ago. All the respondents as offence under Sec. 376 IPC.
well as the prosecutrix must have by 65 Therefore, we do not, in the instant
30 now got married and settled down in case, for those very reasons, consider
life. These are some of the factors it desirable to award any
which we need to take into compensation, in addition to the fine
consideration while imposing an already imposed, particularly as no
appropriate sentence on the 70 scheme also appears to have been
35 respondents. We accordingly drawn up as yet.
sentence the respondents for the
offence under Sec. 376 IPC to

240
 Before, parting with the case, there is of the prosecutrix inspirers
one other aspect to which we would confidence, it must be relied upon
like to advert to. without seeking corroboration of her
40 statement in material particulars. If
15. OF late, crime against women in
for some reason the Court finds it
5 general and rape in particular is on
difficult to place implicit reliance on
the increase. It is an irony that while
her testimony, it may look for
we are celebrating women's rights in
evidence which may lend assurance
all spheres, we show little or no
45 to her testimony, short of
concern for her honour. It is a sad
corroboration required in the case of
10 reflection on the attitude of
an accomplice. The testimony of the
indifference of the society towards
prosecutrix must be appreciated in
the violation of human dignity of the
the background of the entire case and
victims of sex crimes. We must
50 the trial court must be alive to its
remember that a rapist not only
responsibility and be sensitive while
15 violates the victim's privacy and
dealing with cases involving sexual
personal integrity, but inevitably
molestations.
causes serious psychological as well
as physical harm in the process. Rape 16. There has been lately, lot of
is not merely a physical assault - it is 55 criticism of the treatment of the
20 often destructive of the whole victims of sexual assault in the court
personality of the victim. A murderer during their cross-examination. The
destroys the physical body of his provisions of Evidence Act regarding
victim, a rapist degrades the very relevancy of facts notwithstanding,
soul of the helpless female. The 60 some defence counsel adopt the
25 Courts, therefore, shoulder a great strategy of continual questioning of
responsibility while trying an the prosecutrix as to the details of the
accused on charges of rape. They rape. The victim is required to repeat
must deal with such cases with again and again the details of the
utmost sensitivity. The Courts should 65 rape incident not so much as to bring
30 examine the broader probabilities of out the facts on record or to test her
a case and not get swayed by minor credibility but to test her story for
contradictions or insignificant inconsistencies with a view to
discrepancies in the statement of the attempt to twist the interpretation of
prosecutrix, which are not of a fatal 70 events given by her so as to make
35 nature, to throw out an otherwise them appear inconsistent with her
reliable prosecution case. If evidence allegations. The Court, therefore,

241
 should not sit as a silent spectator conclusive presumption as to the
while the victim of crime i being absence of consent in certain
cross-examined by the defence. It prosecutions for rape, involving such
must effectively control the recording 40 custodians. Sec. 327 of the Code of
5 of evidence in the Court. While every Criminal Procedure which deals with
latitude should be given to the the right of an accused to an open
accused to test the veracity of the trial was also amended by addition of
prosecutrix and the credibility of her sub- Sec. 2 and 3 after re- numbering
version through cross-examination, 45 the old Sec. as sub-Sec. (1). Sub-Sec.
10 the court must also ensure that cross- 2 and 3 of Sec. 327 Cr. P.C. provide
examination is not made a means of as follows:
harassment or causing humiliation to
Sec. 327. Court to be open - (2)
the victim of crime. A victim of rape,
Notwithstanding anything contained
it must be remembered, has already
50 in sub-Sec. (1), the inquiry into and
15 undergone a traumatic experience
trial of rape or an offence under Sec.
and if she is made to repeat again and
376, Sec. 376-A, Sec. 376- B, Sec.
again, in unfamiliar surroundings,
376-C or Sec. 376-D of the Indian
what she had been subjected to, she
Penal Code shall be conducted in
may be too ashamed and even
55 camera :
20 nervous or confused to speak and her
silence or a confused stray sentence Provided that the presiding judge
may be wrongly interpreted as may, if he thinks fit, or on an
"discrepancies and contradictions" in application made by either of the
her evidence. parties, allow any particular person to
60 have access to, or be or remain in, the
25 17. The alarming frequency of crime
room or buildingused by the Court.
against women led the Parliament to
(3) Where any proceedings are held
enact Criminal Law (Amendment)
under sub-Sec. (2), it shall not be
Act, 1983 [Act 43 of 1983] to make
lawful for any person to print or
the law of rape more realistic. By the
65 publish any matter in relation to any
30 Amendment Act, Sec. 375 and 376
such proceedings, except with the
were amended and certain more
previous permission of the Court."
penal provisions were incorporated
for punishing such custodians who 18. These two provisions are in the
molest a women under their custody nature of exception to the general
35 or care. Sec. 114-A was also added in 70 rule of an open trial. Inspite of the
the Evidence Act for drawing a amendment, however, it is seen that

242
 the trial courts either are not falsehood. The High Courts would
conscious of the amendment or do therefore be well advised to draw the
not realise its importance for hardly 40 attention of the trial courts to the
does one come across a case where amended provisions of Sec. 327 Cr.
5 the enquiry and trial of a rape case P.C. When trials are held in camera,
has been conducted by the court in it would not be lawful for any person
camera. The expression that the to print or publish any matter in
inquiry into and trial of rape "shall be 45 relation to the proceedings in the
conducted in camera" as occurring in case, except with the previous
10 sub- Sec. (2) of Sec. 327 Cr. P.C. is permission of the Court as envisaged
not only significant but very by Sec. 327 (3) Cr. P.C. This would
important. It casts a duty on the save any further embarrassment
Court to conduct the trial of rape 50 being caused to the victim of sex
cases etc. invariably "in camera". crime. Wherever possible it may also
15 The Courts are obliged to act in be worth considering whether it
furtherance of the intention expressed would not be more desirable that the
by the Legislature and not to ignore cases of sexual assaults on the
its mandate and must invariably take 55 females are tried by lady Judges,
recourse to the provisions of Sec. 327 wherever available, so that the
20 (2) and (3) Cr. P.C. and hold the trial prosecutrix can make her statement
of rape cases in camera. It would with greater ease and assist the
enable the victim of crime to be a Courts to properly discharge their
little comfortable and answer the 60 duties, without allowing the truth to
questions with greater ease in not too be sacrificed at the altar of rigid
25 familiar a surroundings. Trial in technicalities while appreciating
camera would not only be in keeping evidence in such cases. The Courts
with the self-respect of the victim of should, as far as possible, avoid
crime and in tune with the legislative 65 disclosing the name of the
intent but is also likely to improve prosecutrix in their orders to save
30 the quality of the evidence of a further embarrassment to the victim
prosecutrix because she would not be of sex crime. The anonymity of the
so hesitant or bashful to depose victim of the crime must be
frankly as she may be in an open 70 maintained as far as possible
court, under the gaze of public. The throughout. In the present case, the
35 improved quality of her evidence trial court has repeatedly used the
would assist the courts in arriving at name of the victim in its order under
the truth and sifting truth from appeal, when it could have just

243
 referred to her as the prosecutrix. We
need say no more on this aspect and
30
hope that the trial Courts would take
recourse to the provisions of Sec. 327
5 (2) and (3) Cr. P.C. liberally. Trial of
rape cases in camera should be the
rule and an open trial in such cases
an exception.

35
10

40
15

45
20

50
25

244
 30. the injuries reflected the signs of
struggle. The Trial Court of Sessions
State v. Lekhraj – 2000 (1) SCC
Judge, Mandi convicted the
247
appellants under Sec. 376(2)(g) and
S. Saghir Ahmad, R.P. Sethi 40 323 of the Indian Penal Code and
5
sentenced them to undergo rigorous
imprisonment for five years and to
UDGMENT 1999 Supp(4) SCR 286 pay a fine of Rs, 5,000 each under
The Judgment of the Court was Sec. 376 IPC and six months
delivered by SETHI, J. Leave 45 rigorous imprisonment under Sec.
granted. 323 with fine of Rs. 500 each. In
10 1. The prosecutrix, a widow of 55 default of the payment of fine, the
years of age was criminally assaulted appellants were to undergo further
and subjected to forcible sexual rigorous imprisonment specified in
intercourse by the respondents on 50 the judgment. In appeal filed by the
10.11.1993 near her village Baadi in appellants the High Court vide order
15 Gumanu Nalla District Mandi, impugned in this appeal set aside the
Himachal Pradesh when she was order of the Sessions Judge and
coming back to her house after acquitted the respondents of the
attending the marriage of the 55 charges framed against them.
daughter of her husband's brother. Alleging that the judgment of the
20 The first Information Report was High Court was against law and
submitted by her on the next date facts, the State has preferred this
against the respondents. She was acquittal appeal.
medically examined and her torn 60 2. The respondent No. 2 has been
Salwar was sent for chemical acquitted by the High Court on the
25 analysis. On medical examination ground that his identity could not be
various injuries were found on her established by the prosecution at the
person. As the prosecutrix was found trial The admitted position is that the
habituated to sexual intercourse, 65 name of respondent No. 2 was not
being an elderly woman and mother known to the prosecutrix and thus his
30 of two grown up children, no opinion name was not mentioned in the FIR,
was possible about the last date of She had, in the written report lodged
sexual act. However the Doctor upon with the Superintendent of Police,
examination of the injuries, 70 Mandi on 11.10.1993, stated that
mentioned in the medico-legal respondent No. 1 "with another
35 certificate, was of the opinion that
245
 person whose name is not known to spot. The evidence of identifying the
the complainant interrupted the accused person at the trial for the
complainant from her back and 40 first time is, from its very nature,
gagged her mouth. They pounced inherently of a weak character. This
5 upon her and made her to lay down Court in Budhsen & Anr. v. State of
on the road and had forcible sexual U.P., [1970] 2 SCC 128 held that the
intercourse with her". In her evidence in order to carry conviction
statement before the Trial Court the 45 should ordinarily clarify as to how
prosecutrix admitted that she had not and under what circumstances the
10 known the respondent No. 2 earlier complainant or the witness came to
and further that no Identification pick out the particular accused
Parade was conducted:by the person and the details of the part
investigating agency. She further 50 which he allegedly played in the
admitted having seen the respondent crime in question with reasonable
15 No. 2 in the Court only after the day particularly. In such cases test
of occurrence. How the respondent identification is considered as safe
No. 2 was named as an accused rule of prudence to generally look for
person is a mystery shrouded with 55 corroboration of the sworn testimony
doubts which has not been properly of witnesses in Court as to the
20 and sufficiently explained by the identity of the accused who are
prosecution. During the investigation strangers to them. There may,
of a crime the police agency is however, be exceptions to this
required to hold Identification Parade 60 general rule, when, for example, the
for the purposes of enabling the court is impressed by a particular
25 witness to identify the person alleged witness on whose testimony it can
to have committed the offence safely rely without such or other
particularly when such person was corroboration. Though the holding of
not previously known to the witness 65 identification proceedings are not
or the informant. The absence of Test substantive evidence. Yet they are
30 Identification may not be fatal if the used for corroboration purposes for
accused is known or sufficiently believing that the person brought
described in the complaint leaving no before the court was the real person
doubt in the mind of the Court 70 involved in the commission of the
regarding his involvement. crime. The identification parade even
35 Identification Parade may also not be if held, cannot, in all cases, be
necessary in a case where the considered as safe, Sole and
accused persons are arrested at the trustworthy evidence on which the

246
 conviction of the accused could be We are, however, of the opinion that
sustained. It is a rule of prudence the High Court was not justified in
which is required to be followed in holding that the prosecutrix had not
cases where accused is not known to been subjected to forcible sexual
5 the witnesses or the complainant. 40 intercourse or the prosecution had
failed to prove the case against the
The holding of identification parade
respondent No. 1 also. To hold that
in the instant case would have been
the prosecution had not proved the
irrelevant, had the name of
case against the respondent, beyond
respondent No. 2 been mentioned in
45 reasonable doubt, the High Court
10 the FIR Exhibit P/D. The prosecutrix
mainly relied upon the medical
in her deposition before the Trial
evidence and finding that "no dead or
Court even denied the suggestion of
alive spermatozoa were seen.
the respondent No. 2 to the effect that
Absence of such dead or mobile
the respondent No. 2 had been
50 spermatozoa either in the vagina or in
15 working at her place as a Mason. It
the cervix of the prosecutrix rules out
was, therefore, incorrect for the Trial
the possibility of the prosecutrix
Court to hold:
having been subjected to sexual
"So far as the identification of the intercourse on the date and time
accused is concerned that is not 55 alleged by the prosecution". Such a
20 disputed at all, therefore, at the conclusion is not referable to any
relevant time they could not have evidence on record. No such
been identified by the prosecutrix" suggestion was put to the doctor nor
3. The identity of the respondent No. any medical authority referred to in
2 was, admittedly, not established 60 support of the conclusions arrived at
25 during the investigation and it is not by the High Court. This Court in
clear as to how the said respondent State of Maharashtra v.
was put on trial along with Chandraprakash Kewalchand Jain,
respondent No. 1. We agree with the [1990] 1 SCC 550 relying upon
finding of the High Court that 65 medical evidence observed that
30 accused Diwan Chand could not be "supermatozoa can be found if the
held guilty as no unimpeachable, woman is examined within 12 hours
reliable and satisfactory evidence after intercourse, thereafter they may
was produced regarding his be found between 48 and 72 hours
involvement in the commission of 70 but in dead form. If the prosecutrix
35 the crime. washes herself by then, the
spermatozoa may not be found. In

247
 that case the Court after satisfying rate of crime against the woman and
itself regarding the presence of held:
semen on the clothes of the
"Of late, crime against women in
prosecutrix held that "the absence of
general and rape in particular is on
5 semen or spermatozoa in the vaginal
40 the increase. It is in irony that while
smear and slides, cannot cast doubt
we are celebrating woman's rights in
on the creditworthiness of the
all spheres, we show little or no
prosecutrix".
concern for her honour. It is a sad
4. Modi in his Medical Jurisprudence reflection on the attitude of
10 and Toxicology has noted ~. "The 45 indifference of the society towards
presence of supermatozoa in the the violation of human dignity of the
vagina after intercourse has been victims of sex crimes. We must
reported by Pollak (1943) from 30 remember that a rapist not only
minutes to 17 days, and by Morrison violates the victim's privacy and
15 (1972) upto 9 days in vagina and 12 50 personal integrity, but inevitably
days in the cervix. However, in the causes serious psychological as well
vagina of a dead woman, they persist as physical harm in the process. Rape
for a longer period." is not merely a physical assault- it is
often destructive of the whole
It follows, therefore, that the
55 personality of the victim, a murderer
20 presence of spermatozoa, dead or
destroys the physical body of his
alive, would different from person to
victim, a rapist degrades the very
person and its positive presence
soul of the helpless female. The
depend upon various circumstances.
courts, therefore, shoulder a great
Otherwise also the presence or
60 responsibility while trying an
25 absence of spermatozoa is
accused on charges of rape. They
ascertained for the purposes of
must deal with such cases with
corroboration of the statement of the
utmost sensitivity. The courts should
prosecutrix. If the prosecutrix is
examine the broader probabilities of
believed to be truthful witness, in her
65 a case and not get swayed by minor
30 deposition no further corroboration
contradictions of insignificant
may be insisted. Corroboration is
discrepancies in the statement of the
admittedly only a rule of prudence,
prosecutrix, which are not of a fatal
This Court in State of Punjab v,
nature, to throw out an otherwise
Gurmeet Singh & Ors., [1996] 2
70 reliable prosecution case. If evidence
35 SCC 384 took note of the existing
of the prosecutrix inspires

248
 confidence, it must be relied upon case. The inherent bashfulness of the
without seeking corroboration of her females and the tendency to conceal
statement in material particulars. If outrage of sexual aggression are
for some reason the court finds it 40 factors which the courts should not
5 difficult to place implicit reliance on overlook. The testimony of the
her testimony, it may look for victim in such cases is vital and
evidence which may lend assurance unless there are compelling reasons
to her testimony, short of which necessitate looking for
corroboration required in the case of 45 corroboration of her statement, the
10 an accomplice. The testimony of the courts should find no difficulty to act
prosecutrix must be appreciated in on the testimony of a victim of
the background of the entire case and sexual assault alone to convict an
the trial court must be alive of its accused where her testimony inspires
responsibility and be sensitive while 50 confidence and is found to be
15 dealing with cases involving sexual reliable. Seeking corroboration of her
molestations." statement before relying upon the
same, as a rule, in such cases
5. Referring to an earlier judgment in
amounts to adding insult to injury.
Chandraprakash Kewalchand Jain's
55 Why should the evidence of a girl or
case (supra) this Court in Gurmit
a woman who complains of rape or
20 Singh's case held;
sexual molestation, be viewed with
"The courts must, while evaluating doubt, disbelief or suspicion? The
evidence, remain alive to the fact that court while appreciating the evidence
in a case of rape, no self-respecting 60 of a prosecutrix may look for some
woman would come forward in a assurance of her statement to satisfy
25 court just to make a humiliating its judicial conscience, since she is a
statement against her honour such as witness who is interested in the
is involved in the commission of rape outcome of the charge levelled by
on her. In cases involving sexual 65 her, but there is no requirement of
molestation, supposed considerations law to insist upon corroboration of
30 which have no material effect on the her statement to base conviction of
veracity of the prosecution case or an accused. The evidence of a victim
even discrepancies in the statement of sexual assault stands almost on a
of the prosecutrix should not, unless 70 part with the evidence of an injured
the discrepancies are such which are witness and to an extent is even more
35 of fatal nature, be allowed to throw reliable. Just as a witness who has
out an otherwise reliable prosecution sustained some injury in the

249
 occurrence, which is not found to be Maharashtra v. Chandraprakash
self-inflicted, is considered to be a Kewalchand Jain, [1990] 1 SCC 550
good witness in the sense that he is Ahmadi, J. (as the Lord Chief Justice
least likely to shield the real culprit, 40 then was) speaking for the Bench
5 the evidence of a victim of a sexual summarised the position in the
offence is entitled to great weight, following words (SCC p. 559, para
absence of corroboration 16):
notwithstanding. Corroborative
"A prosecutrix of a sex offence
evidence is not an imperative
45 cannot be put on a par with an
10 component of judicial credence in
accomplice. She is in fact a victim of
every case of rape.
the crime. The Evidence Act
6. Corroboration as a condition for nowhere says that her evidence
judicial reliance on the testimony of cannot be accepted unless it is
the prosecutrix is not a requirement 50 corroborated in material particulars.
15 of law but a guidance of prudence She is undoubtedly a competent
under given circumstances. It must witness under Sec. 118 and her
not be overlooked that a woman or a evidence must receive the same
girl subjected to sexual assault is not weight as is attached to an injured in
an accomplice to the crime but is a 55 cases of physical violence. The same
20 victim of another person's lust and it degree of care and caution must
is improper and undesirable to test attach in the evaluation of her
her evidence with a certain amount of evidence as in the case of an injured
suspicion, treating her as if she were complainant or witness and no more.
an accomplice. Inferences have to be 60 What is necessary is that the court
25 drawn from a given set of facts and must be alive to and conscious of the
circumstances with realistic diversity fact that it is dealing with the
and not dead uniformity lest that type evidence of a person who is
of rigidity in the shape of rule of law interested in the outcome of the
is introduced through a new form of 65 charge levelled by her. If the court
30 testimonial tyranny making justice a keeps this in mind and feels satisfied
casualty. Courts cannot cling to a that it can act on the evidence of the
fossil formula and insist upon prosecutrix, there is no rule of law or
corroboration even if, taken as a practice incorporated in the Evidence
whole, the case spoken of by the 70 Act similar to illustration (b) to Sec.
35 victim of sex crime strikes the 114 which requires it to look for
judicial mind as probable. In State of corroboration. If for some reason the

250
 court is hesitant to place implicit credence to the testimony of the
reliance on the testimony of the prosecutrix."
prosecutrix it may look for evidence
7. The other circumstances which
which may lend assurance to her
40 prevailed upon the High Court to
5 testimony short of corroboration
pass the order of acquittal is that the
required in the case of an
sealing of Salwar Exhibit P-l was not
accomplice. The nature of evidence
properly established. It is not denied
required to lend assurance to the
that the seized Salwar had stains of
testimony of the prosecutrix must
45 blood and semen on it. The mere fact
10 necessarily depend on the facts and
that some different marks were noted
circumstances of each case. But if a
on the sealed packet was by itself no
prosecutrix is an adult and of full
ground to discard the otherwise
understanding the court is entitled to
reliable evidence of the prosecutrix.
base a conviction on her evidence
50 The High Court appears to have
15 unless the same is shown to be infirm
completely ignored the medical
and not trustworthy. If the totality of
evidence specifying the injuries on
the circumstances appearing on the
the person of the prosecutrix which
record of the case discussed that the
proved and established the struggle
prosecutrix does not have a strong
55 and resistance shown by her at the
20 motive to falsely involve the person
time of commission of the offence of
charged, the court should ordinarily
rape. Doctor had noted the following
have no hesitation in accepting her
injuries on the person of the
evidence."
prosecutrix:
We are in respectful agreement with
60 "1. There was a small abrasion on
25 the above exposition of law. In the
right side of her forehead with clotted
instant case our careful analysis of
blood.
the statement of the prosecutrix has
created an impression on our minds 2. There were abrasions on extensive
that she is a reliable and truthful surfaces on both legs and left knees
30 witness. Her testimony suffers from 65 which were redish brown in colour.
no infirmity or blemish whatsoever. 3. There were multiple abrasion on
We have no hesitation in acting upon lateral surface of both thighs,
her testimony alone without looking
for any `corroboration'. However, in 4. There was a bruise on posterior
35 this case there is ample corroboration surface on left thigh.
available on the record to lend further

251
 5. There was also a bruise on left satisfying the Court that there was no
buttock 4" x 3" in size. ulterior motive of roping the accused
in the commission of crime.
6. Abrasion on left side of back in
lumber region." 40 8. In support of the impugned
judgment the learned counsel
5 These injuries were sufficient to lend
appearing for the respondents vainly
corroboration to the testimony of the
attempted to point out some
prosecutrix particularly when no
discrepancies in the statement of the
motive is attributed to her for falsely
45 prosecutrix and other witnesses for
involving the respondent No. 1 in the
discrediting the prosecution version.
10 commission of the crime. The
Discrepancy has to be distinguished
prosecutrix, in her cross examination,
from contradiction. Whereas
had denied even the suggestion that
contradiction in the statement of the
the injuries sustained by her were
50 witness is fatal for the case, minor
sustained while cutting grass in the
discrepancy or variance in evidence
15 jungle. She had also denied that she
will not make the prosecution's case
was a liquor addict. The suggestion
doubtful. The normal course of the
regarding the existence of a dispute
human conduct would be that while
between Lekh Raj-respondents and
55 narrating a particular incidence there
her husband over the fishing net was
may occur minor discrepancies, such
20 also not admitted. She also denied
discrepancies in law may render
the suggestion that the accused
credential to the depositions. Parrot
persons had neither met her nor
like statements are disfavoured by
committed any rape. The suggestions
60 the courts. In order to ascertain as to
in cross examination were not rightly
whether the discrepancy pointed out
25 believed by the courts below to hold
was minor or not or the same
the existence of motive for falsely
amounted to contradiction, regard is
implicating the respondents. During
required to be had to the
the arguments before us also the
65 circumstances of the case by keeping
learned counsel for the appellant
in view the social status of the
30 could not point out to the existence
witnesses and environment in which
of any motive for falsely implicating
such witness was making the
the respondents. The fact that the
statement. This Court in Ousu
prosecutrix was a widow of about 55
70 Varghese v. State of Kerala, [1974] 3
years of age having two grown up
SCC 767, held that minor variations
35 children was a circumstance to be
in the accounts of the witnesses are
taken note of for the purposes of

252
 often the hallmark of the truth of Ham v. State of Haryana and Anr.,
their testimony. In Jagdish v. State of JT(1999)8SC 274 held:
Madhya Pradesh, [1981] SCC (Crl.)
"There is bound to be some
676, this Court held that when the
40 discrepancies between the narrations
5 discrepancies were comparatively of
of different witnesses when they
a minor character and did not go to
speak on details, and unless the
the root of the prosecution story, they
contradictions are of a material
need not be given undue importance.
dimension, the same should not be
Mere congruity or consistency is not
45 used to jettison the evidence in its
10 the sole test of truth in the
entirety. Incidentally, corroboration
depositions. This Court again in State
of evidence with mathematical
of Rajasthan v, Kalki & Anr., [1981]
niceties cannot be expected in
2 SCC 752 held that in the
criminal cases. Minor embelishment,
depositions of witnesses there are
50 there may be, but variations by
15 always normal discrepancy, however,
reason therefore should not render
honest and truthful they may be.
the evidence of eye witnesses
Such discrepancies are due to normal
unbelievable. Trivial discrepancies
errors of observation, normal errors
ought not to obliterate an otherwise
of memory due to lapse of time, due
55 acceptable evidence...........
20 to mental disposition such as shock
and horror at the time of occurrence, The Court shall have to bear in mind
and the like. Material discrepancies that different witnesses react
are those which are not normal, and differently under different situations:
not expected of a normal person. whereas some become speechless,
60 some start wailing while some others
25 9. Referring to and relying upon the
run away from the scene and yet
earlier judgments of this Court in
there are some who may come
State of U.P. v, M.K. Anthony, AIR
forward with courage, conviction and
(1985) SC 48, Tehsildar Singh and
belief that the wrong should be
Anr. v State of U.P., AIR (1959) SC
65 remedied. As a matter of fact it
30 1012; Appabhai and Anr. v. State of
depends upon individuals and
Gujarat, JT (1988) 1 SC 249; Rami
individuals. There cannot be any set
alias Rameshwar v. State of Madhya
pattern or uniform rule of human
Pradesh, JT (1999) 7 SC 247 and
reaction and to discard a piece of
Bhura alias Sajjan Kumar v. State of
70 evidence on the ground of his
35 Madhya Pradesh, JT (1999) 7 SC
reaction not falling within a set
247, this Court in a recent case Leela

253
 pattern is unproductive and a down at a distance of about 20 feet
pedantic exercise." where they committed the crime. It is
alleged that such a discrepancy was
On the discrepancies which
40 fatal inasmuch as the road was
persuaded the High Court to
motorable one and had the
5 disbelieve the prosecution evidence
occurrence taken place there, a
is the alleged shifting of the place of
number of witnesses could have seen
occurrence from the main road to 20
the occurrence. The argument is
feet away from it. The prosecutrix
45 without any substance inasmuch as it
has categorically stated that she was
has come in evidence that the road
10 dragged from the road down the path
was not a thorough fare and only one
which was about 20 feet away from
or two vehicles used to ply on it.
the road and raped there. The
discrepancy or contradiction pointed 10. The High Court appears to have
out is that in the FIR which was 50 adopted a technical approach in
15 submitted in writing and was in disposing of the appeal filed by the
English language, the place of respondents. This Court in State of
occurrence was mentioned as road. Punjab v. Jagir Singh, Baljit Singh &
Such mention was based upon Karam Singh, [1974] 3 SCC 277,
recording of the complaint by Shri 55 held:
20 S.P. Parmar, Advocate, after hearing
"A criminal trial is not like a fairy
the narration of the prosecutrix
tale wherein one is free to give fight
whom he found at that time to be
to one's imagination and phantasy. It
scared, nervous and hesitant. Such a
concerns itself with the question as to
discrepancy cannot be held to be a
60 whether the accused arraigned at the
25 major discrepancy amounting to
trial is guilty of the crime with which
contradiction under the
he is charged. Crime is an event in
circumstances of this case. It is not
real life and is the product of
disputed that the statement of the
interplay of different human
prosecutrix under Sec. 161 was
65 emotions. In arriving at the
30 recorded immediately and in that
conclusion about the guilt of the
statement she had not alleged to have
accused charged with the
stated that the occurrence having
commission of a crime, the court has
taken place on the road and not away
to judge the evidence by the
from the road. She was categoric in
70 yardstick of probabilities, its intrinsic
35 stating that the accused persons
worth and the animus of witnesses.
grappled her on the path and took her
Every case in the final analysis

254
 would have to depend upon its own loosely construe the law in favour of
facts. Although the benefit of every the accused. The traditional dogmatic
reasonable doubt should be given to hypertechnical approach has to be
the accused, the courts should not at 40 replaced by rational, realisc and
5 the same time reject evidence which genuine approach for administering
is ex facie trustworthy on grounds justice in a criminal trial. Criminal
which are fanciful or in the nature of Jurisprudence cannot be considered
conjectures." to be a Utopian though but have to be
45 considered as part and parcel of the
The criminal trial cannot be equated
human civilisation and the realities of
10 with a mock scene from a stunt film.
life. The courts cannot ignore the
The legal trial is conducted to
erosion in values of life which are a
ascertain the guilt of innocence of the
common feature of the present
accused arraigned. In arriving at a
50 system. Such erosions cannot be
conclusion about the truth, the Courts
given a bonus in favour of those who
15 are required to adopt rational
are guilty of polluting society and the
approach and judge the evidence by
mankind.
its intrinsic worth and the animus of
the witnesses. The 11. The learned Additional Sessions
hypertechnicalities or figment of 55 Judge has noted the following facts
20 imagination should not be allowed to to find the accused guilty of the
divest the court of its responsibility commission of crime:
of sifting and weighing the evidence
"(i) According to the prosecutrix both
to arrive at the conclusion regarding
the acused persons had grappled with
the existence or otherwise of a
60 her and she was made to lie down on
25 particular circumstances keeping in
the earth and in that process she
view the peculiar facts of each case,
sustained injuries on her body and
the social position of the victim and
these injuries were noticed at the
the accused, the larger interests of the
time of her examination by PW 1 Dr.
society particularly the law and order
65 Maulshri Lata as stated above, which
30 problem and degrading values of life
are also described in the Medico
inherent in the prevalent system. The
Legal Certificate Ex. PA and
realities of life have to be kept in
synchronise with the time of alleged
mind while appreciating the evidence
incident. The possibility of sustaining
for arriving at the truth. The courts
70 these injuries in the agricultural
35 are not obliged to make efforts either
operations is of no use when there is
to give latitude to the prosecution or
direct evidence to show that these

255
 injuries have been sustained by her in possession. It was torn and there
a particular way, as stated by her were some stains over it. It was
when examined in the court and she sealed in the presence of S/Shir Babu
was also subjected to the lengthy Ram and Padam Singh with seal
5 cross-examination by the accused 40 impression `M' This fact has not been
persons; disputed by the accused persons. It
was sent for examination to the
(ii) At the time of contacting her
Forensic Science Laboratory, Shimla,
Advocate Shri S.P. Parmar, PW11,
and on its examination report Ex.
she was scared and hesitant;
45 PH, was received which showed
10 (Hi) The place of the alleged incident presence of human blood and semen
was pointed out 20 feet down to the Further, with reference to this, it is to
road, by her to the Investigating be noticed that she was a widow."
Officer on the basis of which the
12. We agree with the conclusions
siteplan Ex. PG was prepared.
50 arrived at by the learned Sessions
15 (iv) The prosecutrix is a widow. She Judge on proper appreciation of
was living with her son. The alleged evidence so far as respondent No. 1
incident took place on 10.11.93 in is concerned. We have also critically
the evening. She lodged the analysed the statement of the
complaint on 11.11.93 and on the 55 witnesses and have come to a
20 same date, presented it before the conclusion that the prosecution had
Superintendent of Police, Mandi and proved its case against the
thereafter the case was registered on respondent Mo, 1 beyond all
the same day, i.e., on 11.11.93 in reasonable doubts.
Police Station Sadar, Mandi;
60 Under the circumstances the appeal
25 (v) She did not consent for sexual is partly allowed by setting aside the
act, but complained against it to the judgement of the learned Single
police as aforesaid and also testified Judge in so far as it has acquitted the
it on oath. Since the case fails under respondent No. 1 The conviction and
Sec. 376(2}(g) of the Penal Code, 65 sentence awarded by the Sessions
30 thus the presumption as required Judge to respondent No. 1, namely,
under Sec. 114-A of the Evidence Shri Lekh Raj is upheld. It is further
Act has to be down against the directed that out of the amount of
accused person; fine, when recovered, a sum of Rs.
(vi) On 12.11.93, the Salwar Ex. P.] 70 4500 shall be paid to the prosecutrix.
35 of the prosecutrix was taken into No ground is made out to interfere

256
 with the order of acquittal relating to
respondent No. 2, namely. Shri
Diwan Chand. The bail bonds
furnished by respondent No, 1 shall 30
5 stand cancelled and he is directed to
be taken into custody for undergoing
the sentence awarded to him.

10 35

15 40

20 45

25 50

257
 31. bombardment of Jamnagar by
Pakistan in 1965, Mohini’s parents
Thakorlal D. Vadgama v. State of
came to reside temporarily at Bhrol
Gujarat AIR 1973 SC 2313
near Jamnagar. The appellant came
I.D. DUA, J. – 40 to be introduced to that family and on
5 1. This appeal by special leave is December 18, 1965, which was
directed against the judgment and Mohini’s birthday, the appellant
order of the Gujarat High Court presented her with a parker pen. It
allowing in part the appellant’s may be pointed out that Mohini was
appeal from his conviction by the 45 at that time a school-going girl below
10 Court of the Sessions Judge, 15 years of age. She kept the pen for
Jamnagar under Sec..366 and about 2 or 3 days, but at the instance
Sec..376, I. P. C. The High Court of her mother, returned it to the
acquitted him of the offence under appellant. Thereafter, the appellant
Sec..376, I.P.C., but maintained his 50 went to Baroda in his car and he took
15 conviction and sentence under with him, Mohini, her father Liladhar
Sec..366, I.P.C. Jivraj, his manager Tribhovandas,
Malati, daughter of Tribhovandas,
2. According to the prosecution case, who was about 12 years old, and
the offence under Sec..366 I.P.C. 55 Harish, a younger brother of Malati.
took place on January 16, 1967, and At Baroda, the appellant negotiated
20 the offence of rape with which he some transaction with regard to the
was charged was committed on the purchase of some land for the
night between the January 16, and purpose of installing a factory there.
17, 1967. As observed by the High 60 It appears that there was some kind
Court, the background which led to of impression created in the mind of
25 the culmination resulting in the Mohini’s father that he would be
commission of the offences leading employed by the appellant as a
to the appellant’s trial has been manager of the factory to be installed
traced by Mohini, the victim of the 65 at Baroda. The party spent a night at
offences, in the prosecution version, Baroda and next morning started on
30 to the latter part of the year 1965. their return journey to Jamnagar.
The appellant, an industrialist, had a During Christmas of 1965 the
factory at Bunder Road for appellant had a trip to Bombay and
manufacturing oil engines and 70 during this trip also he took with
adjoining the factory was his him, the same party, viz., Mohini, her
35 residential bungalow. During the father, Tribhovandas and

258
 Tribhovandas’ daughter and son. In up for going to bathroom and
Bombay they stayed in Metroplitan switched on the light, she noticed
Hotel for two nights. According to 40 that the appellant was sleeping by
the prosecution story it was during Mohini’s side with his hand on her
5 these two nights that Mohini, Malati head. Mohini’s mother restrained
and the appellant slept in one room, herself and did not speak about what
whereas Mohini’s father, Malati’s she had seen because the appellant
father and Harish slept in another 45 had requested her not to do so. Next
room. On these two nights the morning the party went to Ambaji
10 appellant is stated to have had sexual from where they returned to
intercourse with Mohini. During this Jamanager. At Jamnagar Mohini’s
trip to Bombay the appellant is also mother informed her husband about
said to have purchased two skirts and 50 what she had seen during the night at
waist bands for Mohini and Malati. MountAbu, Mohini’s father got
15 After their return to Jamnagar, annoyed and rebuked Mohini. Her
according to the prosecution story, mother also warned her against
the appellant had sexual intercourse repetition of such conduct. Mohini
with Mohini once in the month of 55 apologized. The appellant on coming
March, 1965 when she had gone to to know of the feeling of Mohini’s
20 the appellant’s residential bungalow parents, told her father that Mohini
at about 7 p.m. Indeed, Mohini used was just like his own daughter Rekha
to visit the appellant’s place off and to him and that he would even go to
on. During the summer vacation in 60 Dattatraya temple and swear by God
1966 the appellant had a trip to to that effect. The appellant is stated
25 Mahabaleshwar in his car. On this to have actually taken Mohini’s
occasion, along with Mohini he took father, Mohini and Rekha to
her two parents as well as also his Dattatraya temple in Jamnagar and
own daughter Rekha. On their way to 65 placing his hands on the heads of
Mahabaleshwar, they stopped at Mohini and Rekha swore that they
30 Bombay for two days. After staying were his daughters. Even after this
at Mahabaleshwar for two days, on incident in Dattatraya temple, the
their return journey they again halted appellant once met Mohini when she
at Bombay for a night, and then 70 was returning from her school and
proceeded to Mount Abu. At Mount took her to his own bungalow in his
35 Abu they stayed for one day and all car. There, he had sexual intercourse
of them slept in one room. At about with her. It seems that Mohini’s
3.00 a.m. when Mohini’s mother got parents came to know about this

259
 incident and they rebuked her. Mohini to come to his bungalow. On
Mohini’s parents also started taking January 16, 1967, Mohini started for
precaution of not sending her alone 40 her school with a school book and
to the school. From July, 1966 two exercise books, in the company
5 onwards either the maid-servant or of her mother Narmada who had to
Mohini’s mother herself would go to Court for some work. Upto the
accompany her to the school. The Court premises, they both went
appellant is stated to have made an 45 together where Smt Narmada stayed
effort to contact Mohini during this on and Mohini proceeded to her
10 period. He called her at his house on school. Instead of going to her
Saturday, September 24, 1966. school, she apparently was to the
Mohini’s mother having come to appellant’s factory, according to a
know of this behaviour on the part of 50 previous arrangement. There the
the appellant, wrote him a letter, appellant met her and took her inside
15 dated September 26, 1966, his motor garage. From there she was
requesting him to desist from his taken to the attached room and made
activities of trying to contact Mohini. to write two or three letters on his
Apparently, after this letter there was 55 dictation. She did so while sitting on
no contact between Mohini and the two tyres. These letters were stated to
20 appellant in Jamnagar. In October, have been addressed to her father, to
1966, however, Mohini had gone to the District Superintendent of Police
Ahmedabad in school camp and there of Jamnagar, and to the appellant
the appellant contacted her and took 60 himself. These letters contained
her out for a joy ride in company complaints of ill-treatment of Mohini
25 with two of her girl friends. by her father and mother and
Thereafter, in the months of information about the fact that she
November, and December, 1965 was leaving for Bombay after taking
nothing particular seems to have 65 Rs.250 from the appellant.
happened. According to the According to the postal stamps, these
30 appellant, however, during those two letters appeared to have been cleared
months, Mohini had written letters to from the post office at 2.30 p.m. on
him complaining of ill-treatment by January 16, 1967. Thereafter,
her parents and expressing her desire 70 according to the prosecution version,
to leave her parents’ house. We Mohini was made by the appellant to
35 would refer to those letters a little sit in the dickey of his car which was
later. Early in January, 1967 the taken to some place, Mohini
appellant is alleged to have told remaining in the dickey for some

260
 hours. She was then taken to the and started taking her meal. While
office of his factory at midnight and doing so, she felt that some motor car
there he had sexual intercourse with 40 had come into the compound. The
her against her will. After the sexual appellant told her that police had
5 intercourse, there was some sound of come and, therefore, she must leave
motor car entering the compound through the back door and go to the
whereupon the appellant took her road-side directing her to go towards
inside the cellar in the office and 45 Gandhinagar and wait there for him.
asked her to sit there. After about an Leaving her food unfinished, Mohini
10 hour the appellant came and took her went out and waited near
from the cellar to his garage where Gandhinagar at a distance of about
she was again made to remain in the one furlong from the appellant’s
dickey. It appears that the following 50 garage. It was here that she was
morning the appellant told Mohini traced by the Police Sub-Inspector
15 that he was called to the police Chaudhary who came there with the
station. He went there in his car with appellant in the latter’s car at about
Mohini in the dickey and then he and 9.00p.m. From the dickey of the
the police man came back to his 55 appellant’s motor car, one bedding
bungalow. The police man went and some clothes belonging to
20 inside the bungalow and the Mohini, viz., skirt, blouse, knickers
appellant parked the car in his and petticoat were found. These
garage. He took Mohini out of the clothes were wet. Her school books
dickey and told her to go to the inner 60 and two exercise books were also
room of the garage. This inner room found there. In the inner room of the
25 had four doors. One of them opened garage was found unfinished food
on the main road and another m the and utensils which bore the name of
garage. Feeling thirsty, Mohini went the appellant. Mohini was sent for
out in the garden and saw a Mali 65 medical examination by the Lady
working there whom she asked for Medical Officer, but the Medical
30 water. It appears that at about 6.30 Officer did not find any symptoms of
p.m. the appellant came to the inner forcible sexual intercourse.
room and promised to bring some
3. Turning now to the scene at the
food, water and clothes for Mohini,
70 house of Mohini’s parents, after her
telling her to wait for him in that
mother Smt Narmada finished with
35 room. After some time, he returned
the court work, she returned to her
with food, water and clothes. Mohini
house. They had a visitor Dinkerrai
changed her clothes; washed her face

261
 from Rajkot. While they were all at Sub Inspector. On the night of 17th
home some school girls informed January, Police Sub-Inspector
Mohini’s mother that Mohini had not 40 Chaudhary went to the appellant’s
gone to the school that day. Smt bungalow and it was this time that
5 Narmada at once suspected the Mohini heard the sound of a motor
appellant and therefore went to his car and left the garage at the instance
house along with the Dinkerrai. On of the appellant leaving unfinished
enquiry from the appellant, he 45 the food she was eating. In the inner
expressed his ignorance about room, next to the garage, were found
10 Mohini’s whereabouts. He, however, Mohini’s clothes, a lady’s purse, one
admitted that she had come to him comb, 2 plastic buckets full of water,
for money but had gone away after one lantern and some other articles.
taking Rs. 250/- from him. This 50 From the dickey of the appellant’s
according to him had happened car on search were also found skirt,
15 between 4 and 5.30 p.m. on that day one blouse a petticoat and one book
viz., January 16, 1967. Mohini’s two exercise books as already
father then lodged complaint with the noticed. All these articles belonged to
police at about 7.20 p.m. on that very 55 Mohini. This in brief is the
day. The Police Sub-Inspector visited prosecution story.
20 the appellant’s bungalow in the night
4. The appellant admitted that he had
between 16th and 17th of January
developed intimate relations with the
and searched the bungalow but did
family of Mohini, but denied having
not find Mohini there. Thereafter, the
60 presented to her a Parker pen in
Sub-Inspector again went to the
December, 1965. He also admitted
25 appellant’s bungalow on the morning
his trips to Baroda and Bombay in
of the 17th January and attached
December, 1965 when he took with
some letters and other papers
him Mohini, her father, Malati, her
produced by the appellant. He also
65 father and Malati’s brother. He
went to the appellant’s office and
admitted having stayed in
30 inspected the books of account for
Metropolitan Hotel at Bombay but
the purpose of verifying whether
denied that he, Mohini and Malati
there was any entry about the
had slept in one room and that he had
payment of Rs.250 to Mohini.
70 sexual intercourse with Mohini
Meanwhile, Mohini’s father Liladhar
during their stay in this hotel. He also
35 received a letter bearing post mark,
denied having sexual intercourse
dated January 16, 1967 which was
with Mohini in the month of March,
produced by him before the Police

262
 1966. He further denied having however, was firm and adamant in
purchased skirts and waist bands for not going back to her parent’s house
Mohini and Malati in Bombay in 40 at any cost. According to the
December, 1965. The trip to appellant, the reason for falsely
5 Mahabaleshwar during summer involving him in this case was that
vacation and also the trip to Mount Mohini’s father wanted the appellant
Abu were admitted by the appellant to appoint him as a manager at
but he denied having found sleeping 45 Baroda where the appellant was
with Mohini by Mohini’s mother at planning to start a new factory. The
10 Mount Abu. He admitted the incident appellant having declined to do so
of Dattatraya temple in Jamnagar but because he had many senior persons
this he explained was due to the fact working in his office, Mohini’s
that Mohini’s parents had heard some 50 father felt displeased and concocted
false rumors about his relations with the false story to involve him.
15 Mohini, and that he wanted to
5. The trial court in exhaustive
remove their suspicion. He further
judgment after considering the case
admitted that in the evening of 16th
from the all relevant aspects came to
January, Narmada and Dinkerrai had
55 the conclusion that Mohini was born
approached him to enquire about
on September 18, 1951 and then the
20 Mohini’s whereabouts but according
medical evidence led in the case also
to him Mohini had merely taken
showed that she was above 14 and
Rs.250/- from him without telling
below 17 years of age during the
him as to where she was going. He
60 relevant period. She was accordingly
denied having told Dinker Rai that
held to be a minor on the day of the
25 Mohini had gone to Bombay.
incident. If, therefore, the appellant
According to his version, Mohini
had sexual intercourse with her even
approached him on January 16, 1967
with her consent, he would be guilty
and requested him to keep her at his
65 of rape. Mohini was believed by the
house for about 15 days because she
trial court when she stated that the
30 was tired of harassment at the hands
appellant had sexual intercourse with
of her parents. She added that she
her at the earliest possible
would make her own arrangements
opportunity as this was corroborated
after 15 days. The appellant
70 by the medical evidence. The trial
expressed his inability to keep her in
court found no reason for her to stake
35 his house and suggested that he
her whole life by making false
would take to her parent’s house and
statement about her chastity, nor for
persuade them not to harass her. She,

263
 her parents to encourage or induce return to school, suggesting that he
her to come out with a false story, would take her to her parents and
there being no enmity between the 40 persuade them not to harass her and,
appellant and the family of Mohini it expressed its undoubted opinion
5 with respect to any matter, which that the appellant had used these
would induce them to charge him words to a make a show of being her
falsely. The appellant’s explanation well-wisher, so that, if some
that as a result of his refusal to 45 proceedings were started against him,
appoint Mohini’s father as a Manager he could put forth the defence that he
10 of his factory at Baroda, she had, in had kept Mohini at his house only at
collusion with the parents, concocted her own request and not with the
this story was considered by the trial object of keeping her out of her
court to be too far-fetched to be 50 parents’ custody for having sexual
worthy of belief. In fact, according to intercourse with her. The trial court
15 the trial court it was the appellant got support for this view from the
who had made a suggestion about letters got written by the appellant in
appointing Mohini’s father as his Mohini’s handwriting. This is what
Manager at Baroda and this 55 that court said in this connection:
explained why Mohini’s father was There is, therefore, no doubt in my
20 taken by the appellant to Baroda mind that the accused had prepared
when he paid a visit to that place for all this material so that in case
purchasing land. The court found no criminal proceedings were taken
other cogent reason for taking 60 against him by Mohini’s parents, he
Mohini’s father to Baroda. The trial may be able to lead possible defence
25 court in express terms disbelieved the of his innocence. Nothing prevented
appellant’s explanation. That court the accused from returning Mohini to
also came to the conclusion, on her parents. In any case, even if it
consideration of the evidence and 65 were held that it was not the duty of
bearing in mind the common course the accused to return Mohini to her
30 of human conduct, that it was the parents, it can equally be said that it
appellant who had induced Mohini to was not legal on the part of the
leave her parent’s house on the day accused to secretly confine Mohini at
in question and to have sexual 70 his place and have sexual intercourse
intercourse with her. The trial court with her. The trial court then quoted
35 also considered that part of Mohini’s the following passage from the case
statement that when she went to the of Christian Olifier, reported in 10
appellant’s place, he told her to Cox. 420: Although she may not

264
 leave at the appointed time and 6. On appeal by the appellant, the
although he may not wish that she High Court also considered the
should have left at that particular matter at great length and in a very
time, yet if, finding she has left, he exhaustive judgment, the appellant’s
5 avails himself of that to induce her to 40 conviction under Sec.. 376 was set
continue away from her father’s aside and he was acquitted of that
custody, in my judgment he is also offence. This acquittal was ordered
guilty, if his persuasion operated on because the charge being only for
her mind so as to induce her to leave. sexual intercourse on the night of
10 On the basis of this observation, the 45 January 16, 1967 the evidence of
trial court held that in the present Mohini in support of that offence
case, the inducement given by the was not accepted as safe and free
appellant operated on Mohini’s mind from all reasonable doubt, in the
to stay in his house and do as he told absence of independent
15 her to do. The trial court on a 50 corroboration. In adopting this
consideration of the circumstances of approach, the High Court seems to us
the case and of the subsequent to have been somewhat over
conduct of the appellant came to the indulgent and unduly favorable to the
definite conclusion that Mohini had appellant with respect to the offence
20 gone to the appellant’s place at his 55 under Sec.. 376, I.P.C. but there
instance and subsequently taking being no appeal against acquittal, we
advantage of that position she was need say nothing more about it. The
persuaded by the appellant to stay appellant’s conviction for the offence
there. The appellant was accordingly punishable under Sec.. 366, I.P.C.
25 held guilty under Sec..366 and 60 and the sentence for that offence
Sec..376, I.P.C. Under Sec..366 were, however, upheld. The High
I.P.C., he was sentenced to rigorous Court felt that the story of Mohini
imprisonment for 18 months and with regard to the appellant’s call
under Sec..376, I.P.C. to rigorous about 3 or 4 days before the incident
30 imprisonment for two years and also 65 in question was so natural and so
to fine of Rs 500/- and in default, to highly probable that it felt no
further rigorous imprisonment for six hesitation in accepting it. The
months. The substantive sentences of circumstances preceding the incident
imprisonment were to run were considered by the High Court to
35 concurrently. 70 be sufficiently telling to lend
assurance that it was quite safe to act
upon her testimony. Her account was

265
 considered to be quite truthful and, accepted for want of independent
therefore, acceptable. Mohini’s corroboration. The medical evidence
version that the appellant had told her 40 also suggested that there was no
about 3 or 4 days before the incident presence of spermatozoa when
5 of January 16, 1967 that he would vaginal swab was examined. It was
keep her permanently at his place on this reasoning that the offence
provided sufficient temptation to the under Sec.. 376, I.P.C. as charged
school-going girl like Mohini to go 45 was held not to have been proved
to the appellant, leaving her parental beyond doubt. The presence of
10 home. This was all the more so Mohini in the appellant’s house and
because in the past year or so, the also in his garage on the January 16
appellant had treated Mohini very and 17 was held by the High Court to
fondly by taking her out on trips to 50 be fully established on the record.
different places in his own car and The version given by Mohini was
15 had also lavishly given her gifts of held to be fully corroborated by the
articles like costly pens and silver surrounding circumstances of the
band. The High Court also took into case and by the recoveries of various
consideration the attitude adopted by 55 articles belonging to her. The High
Mohini’s mother in this connection. Court also came to the positive
20 She had very discreetly warned the conclusion that there was no
appellant in a dignified and unreasonable delay on the part of the
respectful language to leave Mohini investigating authorities to record
alone and also expressed her 60 Mohini’s statement. The suggestion
disappointment and unhappiness at on behalf of the appellant that
25 the manner in which the appellant various articles belonging to Mohini
used to behave towards Mohini. The and the utensils found in the inner
High Court considered a part of room of the appellant’s premises
Mohini’s version, as to how she was 65 were planted, was rejected outright.
kept in the dickey of the appellant’s The High Court in a very well-
30 car on the January 16 and 17, 1967, reasoned judgment with respect” to
to be improbable and to have been the offence under Sec.. 366, I. P. C.,
exaggerated by her, but this was came to the conclusion that the
considered to be due to the fact that 70 appellant had taken Mohini out of the
like a school-girl that she was, she keeping of her parents (her lawful
35 introduced an element of sensation in guardian) with an intention that she
her story. Her complaint about may be seduced to illicit intercourse.
intercourse on this occasion was not This is what the High Court

266
 observed: Having come in contact Mohini about 4 days before 16th
with the family of Mohini in about January, 1967 to come to his house
November 1965, the appellant 40 and added that he will keep her with
cultivated relationship with them to him permanently. This possibly
5 such an extent that he took Mohini caught the imagination of the girl and
and her parents out on trips in his car the result was that on 16th January,
spending lavishly by staying in hotels she left her father’s house with bare
in Ahmedabad, Bombay, 45 clothes on her body and with school
Mahabaleshwar and Mount Abu. He books and went straight to the
10 also presented Mohini with a parker appellant. The appellant in order to
pen on December 18, 1965. Within a see that her view to his factory
few days thereafter he purchased by during day time may not arouse
way of gift to Mohini skirt, silver 50 suspicion of other invented the story
waist-band which as per of giving Rs.250 to Mohini and also
15 unchallenged testimony of Mohini got written 3 letters by Mohini
was worth about Rs 12/-. He was addressed to himself, the District
actually found by the side of Mohini Superintendent of Police, Jamnagar
in Mohini’s bed by Mohini’s mother 55 and Mohini’s father. He kept her in
at MountAbu, his connection with the garage of his bungalow for 2
20 Mohini was suspected and in spite of days, tried to secret her from police
that as the letters of Mohini show he and her parents and had already made
was in correspondence with her attempt on 16th to put police and
without the knowledge of her 60 parents of Mohini on wrong track.
parents. Mohini was a school-girl of There is no scope for an inference
25 immature understanding having other than the inference that Mohini
entered her 16th year less than a was kidnapped from lawful
month before the incident. Out of guardianship, with an intention to
emotion she wrote letters to the 65 seduce her to illicit intercourse. The
appellant exaggerating incidents of intention contemplated by Sec.. 366
30 rebuking by her mother and beating. of the Indian Penal Code is amply
She however was quite normal from borne out by these circumstances.
January, 1967. The appellant having Therefore, the conviction of the
come to know about the frame of her 70 appellant under that section. is
mind disclosed from the letters of correct and has to be maintained.
35 November and December, 1965, took
7. As already observed the appellant
chance to take away this girl from
was acquitted of the offence under
her parents. With that view he told

267
 Sec.. 376, I.P.C. but his conviction compassion and sympathy for the
and sentence under Sec.. 366, I.P.C helpless girl in distress. Mohini’s
was upheld. parents were, according to the
40 counsel, unreasonably harsh on her
8. In this Court, Shri Dhebar
on account of some erroneous or
5 addressed very elaborate arguments
imaginary suspicion which they
and took us through considerable part
happen to entertain about the
of the evidence led in the case with
appellant’s attitude towards their
the object of showing that the
45 daughter or about the relationship
conclusion of the two courts below
between the two, and that it was
10 accepting the evidence led by the
primarily her parents’ insulting and
prosecution with respect to the
stern behavior towards her which
charge under Sec.. 366, I.P.C. is
induced her to leave her parental
wholly untrustworthy and no judicial
50 home. It was contended on this
mind could ever have accepted it.
reasoning that the charge under
15 9. After going through the evidence Sec..366, I.P.C. was in the
to which our attention was drawn, we circumstances unsustainable.
are unable to agree with the
10. The legal position with respect to
appellant’s learned counsel. Both the
55 an offence under Sec..366, I.P.C. is
courts below devoted very anxious
not in doubt. In State of Haryana v.
20 care to the evidence led in the case
Rajaram [(1973) 1 SCC 544] this
and the circumstances and the
Court considered the meaning and
probabilities inherent in such a
scope of Sec..361, I.P.C. and it was
situation. They gave to the appellant
60 said there: The object of this section
all possible benefit of the
seems as much to protect the minor
25 circumstances which could have any
children from being seduced for
reasonable bearing in his favor, but
improper purpose as to protect the
felt constrained to conclude that the
rights and privileges to guardians
appellant was proved beyond
65 having the lawful charge or custody
reasonable doubt guilty of the
of their minor wards. The gravamen
30 offence under Sec..336, I.P.C. The
of this offence lies in the taking or
appellant’s main argument was that it
enticing of a minor under the ages
was Mohini who, feeling unhappy
specified in this section, out of the
and perhaps harassed in her parents’
70 keeping of the lawful guardian
house, left it on her own accord and
without the consent of such guardian.
35 came to the appellant’s house for
The words ‘takes or entices any
help which he gave out of

268
 minor out of the keeping of the previous promise or persuasion were
lawful guardian of such minor’ in held in some English decision to be
Sec..361 are significant. The use of 40 sufficient to bring the case within the
the word ‘keeping’ in the context mischief of the statute. Broadly, the
5 connotes the idea of charge, same seems to us to be the position
protection, maintenance and control: under our law. The expression used
further the guardian’s charge and in Sec.. 361, I.P.C. is “whoever takes
control appears to be compatible with 45 or entices any minor”. The word
the independence of action and “takes” does not necessarily connote
10 movement in the minor, the taking by force and it is not confined
guardian’s protection and control of only to use of force, actual or
the minor being available, whenever constructive. This word merely
necessity arises. On plain reading of 50 means, “to cause to go”, “to escort”
this Sec.. the consent of the minor or “to get into possession”. No doubt
15 who is taken or enticed is wholly it does mean physical taking, but not
immaterial: it is only the guardian’s necessarily by use of force or fraud.
consent which takes the case out of The word “entice” seems to involve
its purview. Nor is it necessary that 55 the idea of inducement or allurement
the taking or enticing must be shown by giving rise to hope or desire in the
20 to have been by means of force or other. This can take many forms,
fraud, persuasion by the accused difficult to visualize and describe
person which creates willingness on exhaustively; some of them may be
the part of the minor to be taken out 60 quite subtle, depending for their
of the keeping of the lawful guardian success on the mental state of the
25 would be sufficient to attract the person at the time when the
section. In the case cited reference inducement is intended to operate.
has been made to some English This may work immediately or it
decisions in which it has been stated 65 may create continuous and gradual
that forwardness on the part of the but imperceptible impression
30 girl would not avail the person taking culminating after some time, in
her away from being guilty of the achieving its ultimate purposes of
offence in question and that if by successful inducement. The two
moral force of a willingness is 70 words “takes” and “entices”, as used
created in the girl to go away with in Sec.. 361, I.P.C. are in our
35 the former, the offence would be opinion, intended to be read together
committed unless her going away is so that each takes to some extent its
entirely voluntary. Inducements by color and content from the other. The

269
 statutory language suggests that if the written by her to the appellant mainly
minor leaves her parental home in November, 1966 (Exhibit P-20)
completely uninfluenced by any 40 and in December, 1966 (Exhibit P-
promise, offer or inducement 16) and also the letter written by
5 emanating from the guilty party, then Mohini’s mother to the appellant in
the latter cannot be considered to September, 1966 (Exhibit P-27)
have committed the offence as furnish very important and essential
defined in Sec.. 361, I.P.C. But if the 45 background in which the culminating
guilty party has laid a foundation by incident of January 16 and 17, 1967
10 inducement, allurement or threat, etc. has to be examined. These letters
and if this can be considered to have were taken into consideration by the
influenced the minor or weighed with High Court and in our opinion
her in leaving her guardian’s custody 50 rightly. The suspicion entertained by
or keeping and going to the guilty Mohini’s mother is also in our
15 party, then prima facie it would be opinion, relevant in considering the
difficult for him to plead innocence truth of the story as narrated by the
on the ground that the minor had prosecutrix. In fact, this letter
voluntarily come to him. If he had at 55 indicates how the mother of the girl
an earlier stage solicited or induced belonging to a comparatively poorer
20 her in any manner to leave her family felt when confronted with a
father’s protection, by conveying or rich man’s dishonorable behavior
indicating or encouraging suggestion towards her young, impressionable
that he would give her shelter, then 60 immature daughter; a man who also
the mere circumstance that his act suggested to render financial help to
25 was not the immediate cause of her her husband in time of need. These
leaving her parental home or circumstances, among others, show
guardian’s custody would constitute that the main substratum of the story
no valid defence and would not 65 as revealed by Mohini in her
absolve him. The question truly falls evidence, is probable and trustworthy
30 for determination on the facts and and it admits of no reasonable doubt
circumstances of each case. In the as to its truthfulness. We have,
case before us, we cannot ignore the therefore, no hesitation in holding
circumstances in which the appellant 70 that the conclusions of the two courts
and Mohini came close to each other below with respect to the offence
35 and the manner in which he is stated under Sec..366, I.P.C. are
to have given her presents and tried unexceptionable. There is absolutely
to be intimate with her. The letters no ground for interference under

270
 Article 136 of the Constitution. 11. instance or even a suggestion of the
On the view that we have taken about appellant. In fact, she candidly
the conclusions of the two courts 40 admits that on the morning of
below on the evidence, it is October 1st, she herself telephoned to
5 unnecessary to refer to all the the appellant to meet her in his car at
decisions cited by Shri Dhebar. They a certain place, went up to that place
have all proceeded on their own and finding him waiting in the car
facts. We have enunciated the legal 45 got into that car of her own accord.
position and it is unnecessary to No doubt, she says that she did not
10 discuss the decisions cited. We may, tell the appellant where to go and that
however, briefly advert to the it was the appellant himself who
decision in S. Varadarajan v. State of drove the car to Guindy and then to
Madras[AIR 1965 SC 942] on which 50 Mylapore and other places. Further,
Shri Dhebar placed principal Savitri has stated that she had
15 reliance. Shri Dhebar relied on the decided to marry the appellant. From
following passage at page 245 of the this passage, Shri Dhebar tried to
report: It will thus be seen that taking infer that the case before us is similar
or enticing away a minor out of the 55 to that case, and, therefore, Mohini
keeping of a lawful guardian is an herself went to the appellant and the
20 essential ingredient of the offence of appellant had absolutely no
kidnapping. Here, we are not involvement in Mohini’s leaving her
concerned with enticement but what, parents’ home. Now the relevant test
we have to find out is whether the 60 laid down in the case cited is to be
part played by the appellant amounts found at page 248: It must, however,
25 to ‘taking’ out of the keeping of the be borne in mind that there is a
lawful guardian of Savitri. We have distinction between ‘taking’ and
no doubt that though Savitri had been allowing a minor to accompany a
left by S. Natarajan at the house of 65 person. The two expressions are not
his relative K. Natarajan, she still synonymous though we would like to
30 continued to be in the lawful keeping guard ourselves from laying down
of the former but then the question that in no conceivable circumstance
remains as to what is it which the can the two be regarded as meaning
appellant did that constitutes in law 70 the same thing for the purposes of
‘taking’. There is not a word in the Sec..361 of the Indian Penal Code.
35 deposition of Savitri from which an We would limit ourselves to a case
inference could be drawn that she left like the present where the minor
the house of K. Natarajan at the alleged to have been taken by the

271
 accused person left her father’s fulfilment of the intention of the girl.
protection knowing and having That part, in our opinion, falls short
capacity to know the full import of 40 of an inducement to the minor to slip
what, she was doing voluntarily joins out of the keeping of her lawful
5 the accused person In such a case guardian and is, therefore, not
we do not think that the accused can tantamount to ‘taking’. It is obvious
be said to have taken her away from that the facts and the charge with
the keeping of her lawful guardian. 45 which we are concerned in the
Something more has to be shown in a present case are not identical with
10 case of this kind and that is some those in Varadarajan case. The
kind of inducement held out by the evidence of the constant behavior of
accused person or an active the appellant towards Mohini for
participation by him in the formation 50 several months preceding the
of the intention of the minor to leave incident on the 16th and 17th
15 the house of the guardian. It would, January, 1967, completely brings the
however, be sufficient if the case within the passage at p. 248 of
prosecution establishes that though the decision cited. We have before us
immediately prior to the minor 55 ample material showing earlier
leaving the father’s protection no allurements and even of the
20 active part was played by the appellant’s participation in the
accused, he had at some earlier stage formation of Mohini’s intention and
solicited or persuaded the minor to resolve to leave her father’s house.
do so. In our opinion if evidence to 60 The appellant’s conviction must
establish one of those things is therefore, be upheld. In so far as the
25 lacking it would not be legitimate to question of sentence is concerned, we
infer that the accused is guilty of are wholly unable to find any cogent
taking the minor out of the keeping ground for interference. The conduct
of the lawful guardian merely 65 and behavior of the appellant in
because after she has actually left her going to the temple and representing
30 guardian’s house or a house where that Mohini was like his daughter
her guardian had kept her, joined the merely serves to add to the depravity
accused and the accused helped her of the appellant’s conduct, when
in her design not to return to her 70 once we believe the evidence of
guardian’s house by taking her along Mohini with respect to the offence
35 with him from place to place. No under Sec..366, I. P. C. Though the
doubt, the part played by the accused appellant has been acquitted of the
could be regarded as facilitating the offence of rape, for which he was

272
 also charged, we cannot shut our
eyes to his previous improper
intimacy with Mohini on various
occasions as deposed by her. They
5 were not taken into account as
substantive evidence of rape on
earlier occasions for reasons best 35
known to the prosecution and the
charge under Sec..376, I P. C. was
10 not framed with respect to the earlier
occurrences. But the previous
conduct of the appellant does clearly
constitute aggravating factors. The
sentence is, in our view, already very 40
15 lenient.
12. This appeal must, therefore, fail
and is dismissed.

45
20

50
25

55
30

273
 32. result in the re-opening of criminal
cases involving Sec.. 377 IPC that
Suresh Kumar Koushal v. NAZ
have already attained finality.”
Foundation (2014) 1 SCC 1 G.S.
SINGHVI, J.: 3. The background facts:
40 (i)Respondent No.1 is a Non-
5 1. Leave granted.
Governmental Organization (NGO)
2.These appeals are directed against registered under the Societies
order dated 2.7.2009 by which the Registration Act, 1860 which works
Division Bench of the Delhi High in the field of HIV/AIDS
Court allowed the writ petition filed 45 intervention and prevention. Its work
10 by NAZ Foundation – respondent has focused on targeting ‘men who
No.1 herein, by way of Public have sex with men’ (MSM) or
Interest Litigation (PIL) challenging homosexuals or gays in consonance
the constitutional validity of Sec.. with the integrationist policy.
377 of the Indian Penal Code, 1860 50 Alleging that its efforts have been
15 (IPC) in the following terms: “We severely impaired by the
declare that Sec..377 IPC, insofar it discriminatory attitudes exhibited by
criminalizes consensual sexual acts State authorities towards sexual
of adults in private, is violative of minorities, MSM, lesbians and
Articles 21, 14 and 15 of the 55 transgender individuals and that
20 Constitution. The provisions of unless self-respect and dignity is
Sec..377 IPC will continue to govern restored to these sexual minorities by
non-consensual penile non-vaginal doing away with discriminatory laws
sex and penile non-vaginal sex such as Sec..377 IPC it will not be
involving minors. By 'adult' we mean 60 possible to prevent HIV/AIDS, NAZ
25 everyone who is 18 years of age and Foundation filed WP(C) No.
above. A person below 18 would be 7455/2001 before the Delhi High
presumed not to be able to consent to Court impleading the Government of
a sexual act. This clarification will NCT of Delhi; Commissioner of
hold till, of course, Parliament 65 Police, Delhi; Delhi State Aids
30 chooses to amend the law to Control Society; National Aids
effectuate the recommendation of the Control Organization (NACO) and
Law Commission of India in its 172nd Union of India through Ministry of
Report which we believe removes a Home Affairs and Ministry of Health
great deal of confusion. Secondly, we 70 & Family Welfare and prayed for
35 clarify that our judgment will not grant of a declaration that Sec.. 377

274
 IPC to the extent it is applicable to serves as a weapon for police abuse
and penalizes sexual acts in private in the form of detention, questioning,
between consenting adults is 40 extortion, harassment, forced sex,
violative of Articles 14, 15, 19(1)(a)- payment of hush money; that the
5 (d) and 21 of the Constitution. Sec.. perpetuates negative and
Respondent No.1 further prayed for discriminatory beliefs towards same
grant of a permanent injunction sex relations and sexual minorities in
restraining Government of NCT of 45 general; and that as a result of that it
Delhi and Commissioner of Police, drives gay men and MSM and sexual
10 Delhi from enforcing the provisions minorities generally underground
of Sec.. 377 IPC in respect of sexual which cripples HIV/AIDS prevention
acts in private between consenting methods. According to respondent
adults. (ii)Respondent No.1 pleaded 50 No.1, Sec.. 377 is used
that the thrust of Sec..377 IPC is to predominantly against homosexual
15 penalize sexual acts which are conduct as it criminalizes activity
“against the order of nature”; that the practiced more often by men or
provision is based on traditional women who are homosexually
Judeo Christian moral and ethical 55 active. The evidence that refutes the
standards and is being used to assumption that non-procreative
20 legitimize discrimination against sexual acts are unnatural includes
sexual minorities; that Sec..377 IPC socio-scientific and anthropological
does not enjoy justification in evidence and also the natural
contemporary Indian society and that 60 presence of homosexuality in society
the Sec..’s historic and moral at large. (iii)That private, consensual
25 underpinning do not resonate with sexual relations are protected under
the historically held values in Indian the right to liberty under Article
society concerning sexual relations. 21under the privacy and dignity
Respondent No.1 relied upon 172nd 65 claim. It was further pleaded that
Report of the Law Commission Sec..377 IPC is not a valid law
30 which had recommended deletion of because there exists no compelling
Sec..377 and pleaded that State interest to justify the
notwithstanding the recent curtailment of an important
prosecutorial use of Sec..377 IPC, 70 fundamental freedom; that Sec..377
the same is detrimental to people’s IPC insofar as it criminalizes
35 lives and an impediment to public consensual, non-procreative sexual
health due to its direct impact on the relations is unreasonable and
lives of homosexuals; that the Sec.. arbitrary and therefore violative of

275
 Article 14. (iv) Another plea taken by population and that for prevention of
respondent No.1 was that Sec..377 HIV/AIDS there is a need for an
creates a classification between enabling environment where people
“natural” (penile-vaginal) and 40 indulging in risky behavior may be
5 “unnatural” (penile-non- vaginal) encouraged not to conceal
penetrative sexual acts. The information so that they are provided
legislative objective of penalizing with access to NACO services.
unnatural acts has no rational nexus
7.On behalf of the Ministry of Home
with the classification between
45 Affairs, Government of India, Shri
10 natural (procreative) and unnatural
Venu Gopal, Director (Judicial) filed
(non-procreative) sexual acts and is
an affidavit and pleaded that Sec..377
thus violative of Article 14.
does not suffer from any
6. NACO and the Health Ministry constitutional infirmity. Shri Venu
had filed counter in the form of an 50 Gopal further pleaded that an
15 affidavit of Shri M.L. Soni, Under unlawful act cannot be rendered
Secretary to the Government of legitimate because the person to
India, Ministry of Health & Family whose detriment it acts consents to it;
Welfare, National AIDS Control that Sec..377 has been applied only
Organisation. He outlined the 55 on complaint of a victim and there
20 strategy adopted by NACO for are no instances of arbitrary use or
prevention and control of HIV/AIDS application in situations where the
in India which includes identification terms of the Sec.. do not naturally
of high risk groups and the provision extend to Sec..377 IPC; that Sec..377
of necessary tools and information 60 IPC is not violative of Articles 14
25 for protection and medical care. The and 21 of the Constitution.
deponent averred that National According to Shri Venu Gopal,
Sentinel Surveillance Data 2005 Sec..377 IPC provides a punishment
estimated that HIV prevalence in for unnatural sexual offences, carnal
“men who have sex with men” 65 intercourse against the order of
30 (MSM) is 8% while in general nature and does not make any
population it is lesser than 1%. The distinction between procreative and
MSM population is estimated at 25 non-procreative sex.
lacs as of January 2006. Shri Soni
9. The Division Bench of the High
also stated that NACO has developed
70 Court extensively considered the
35 programs for undertaking targeted
contentions of the parties and
interventions among MSM
declared that Sec.. 377, insofar as it

276
 criminalizes consensual sexual acts full personhood which is implicit in
of adults in private is violative of notion of life under Article 21 of the
Articles 21, 14 and 15 of the 40 Constitution. The criminalization of
Constitution. While dealing with the homosexuality condemns in
5 question relating to violation of perpetuity a sizable Sec.. of society
Article 21, the High Court outlined and forces them to live their lives in
the enlarged scope of the right to life the shadow of harassment,
and liberty which also includes right 45 exploitation, humiliation, cruel and
to protection of one’s dignity, degrading treatment at the hands of
10 autonomy and privacy, the Division the law enforcement machinery. The
Bench referred to Indian and foreign Government of India estimates the
judgements, the literature and MSM number at around 25 lacs. The
international understanding 50 number of lesbians and transgender
(Yogyakarta Principles) relating to is said to be several lacs as well. This
15 sexuality as a form of identity and vast majority (borrowing the
the global trends in the protection of language of the South African
privacy and dignity rights of Constitutional Court) is denied
homosexuals and held: “The sphere 55 “moral full citizenship”. Sec..377
of privacy allows persons to develop IPC grossly violates their right to
20 human relations without interference privacy and liberty embodied in
from the outside community or from Article 21 insofar as it criminalizes
the State. The exercise of autonomy consensual sexual acts between
enables an individual to attain 60 adults in private. These fundamental
fulfilment, grow in self-esteem, build rights had their roots deep in the
25 relationships of his or her choice and struggle for independence and, as
fulfil all legitimate goals that he or pointed out by Granville Austin in
she may set. In the Indian “The Indian Constitution –
Constitution, the right to live with 65 Cornerstone of A Nation”, “they
dignity and the right of privacy both were included in the Constitution in
30 are recognized as dimensions of the hope and expectation that one day
Article 21. Sec..377 IPC denies a the tree of true liberty would bloom
person's dignity and criminalizes his in India”. In the words of Justice
or her core identity solely on account 70 V.R. Krishna Iyer these rights are
of his or her sexuality and thus cardinal to a decent human order and
35 violates Article 21 of the protected by constitutional armor.
Constitution. As it stands, Sec.. 377 The spirit of Man is at the root of
IPC denies a gay person a right to Article 21, absent liberty, other

277
 freedoms are frozen. A number of public morality. The argument of the
documents, affidavits and learned ASG that public morality of
authoritative reports of independent homosexual conduct might open
agencies and even judgments of 40 floodgates of delinquent behavior is
5 various courts have been brought on not founded upon any substantive
record to demonstrate the widespread material, even from such
abuse of Sec.. 377 IPC for jurisdictions where sodomy laws
brutalizing MSM and gay have been abolished. Insofar as basis
community persons, some of them of 45 of this argument is concerned, as
10 very recent vintage. If the penal pointed out by Wolfenden
clause is not being enforced against Committee, it is often no more than
homosexuals engaged in consensual the expression of revulsion against
acts within privacy, it only implies what is regarded as unnatural, sinful
that this provision is not deemed 50 or disgusting. Moral indignation,
15 essential for the protection of morals howsoever strong, is not a valid basis
or public health vis-a-vis said Sec.. for overriding individuals’
of society. The provision, from this fundamental rights of dignity and
perspective, should fail the privacy. In our scheme of things,
“reasonableness” test.” 55 constitutional morality must
outweigh the argument of public
20 10. The High Court discussed the
morality, even if it be the
question whether morality can be a
majoritarian view. In Indian context,
ground for imposing restriction on
the latest report (172nd) of Law
fundamental rights …. and observed:
60 Commission on the subject instead
“Thus popular morality or public
shows heightened realization about
25 disapproval of certain acts is not a
urgent need to follow global trends
valid justification for restriction of
on the issue of sexual offences.
the fundamental rights under
Article21. Popular morality, as 11.The High Court then considered
distinct from a constitutional 65 the plea of respondent No.1 that Sec..
30 morality derived from constitutional 377 is violative of Article 14 of the
values, is based on shifting and Constitution…. The observations
subjecting notions of right and made by the High Court on this issue
wrong. If there is any type of are extracted below: “It is clear that
“morality” that can pass the test of 70 Sec.. 377 IPC, whatever its present
35 compelling state interest, it must be pragmatic application, was not
“constitutional” morality and not enacted keeping in mind instances of

278
 child sexual abuse or to fill the the legislation to be non-arbitrary and
lacuna in a rape law. It was based on must be proportionate towards
a conception of sexual morality 40 achieving the state interest. If the
specific to Victorian era drawing on objective is irrational, unjust and
5 notions of carnality and sinfulness. In unfair, necessarily classification will
any way, the legislative object of have to be held as unreasonable. The
protecting women and children has nature of the provision of Sec.. 377
no bearing in regard to consensual 45 IPC and its purpose is to criminalize
sexual acts between adults in private. private conduct of consenting adults
10 The second legislative purpose which causes no harm to anyone else.
elucidated is that Sec..377 IPC serves It has no other purpose than to
the cause of public health by criminalize conduct which fails to
criminalizing the homosexual 50 conform with the moral or religious
behavior. As already held, this views of a Sec.. of society. The
15 purported legislative purpose is in discrimination severely affects the
complete contrast to the averments in rights and interests of homosexuals
NACO's affidavit. NACO has and deeply impairs their dignity.”
specifically stated that enforcement
55 “Sec..377 IPC is facially neutral and
of Sec..377 IPC adversely
it apparently targets not identities but
20 contributes to pushing the infliction
acts, but in its operation it does end
underground, make risky sexual
up unfairly targeting a particular
practices go unnoticed and
community. The fact is that these
unaddressed. Sec..377 IPC thus
60 sexual acts which are criminalized
hampers HIV/AIDS prevention
are associated more closely with one
25 efforts. Lastly, as held earlier, it is
class of persons, namely, the
not within the constitutional
homosexuals as a class. Sec..377 IPC
competence of the State to invade the
has the effect of viewing all gay men
privacy of citizen’s lives or regulate
65 as criminals. When everything
conduct to which the citizen alone is
associated with homosexuality is
30 concerned solely on the basis of
treated as bent, queer, repugnant, the
public morals. The criminalization of
whole gay and lesbian community is
private sexual relations between
marked with deviance and perversity.
consenting adults absent any
70 They are subject to extensive
evidence of serious harm deems the
prejudice because what they are or
35 provision's objective both arbitrary
what they are perceived to be, not
and unreasonable. The state interest
because of what they do. The result is
“must be legitimate and relevant” for

279
 that a significant group of the take account of changing conditions
population is, because of its sexual and purposes so that the
nonconformity, persecuted, constitutional provision does not get
marginalized and turned in on itself. 40 atrophied or fossilized but remains
flexible enough to meet the newly
5 if a law discriminates on any of the
emerging problems. [Francis Coralie
prohibited grounds, it needs to be
Mullion v. Union Territory of Delhi
tested not merely against
(1981) 1 SCC 608, Para 6 of SCC].”
“reasonableness” under Article 14
but be subject to “strict scrutiny”. 45 15.The order of the High Court has
10 The impugned provision in Sec..377 been challenged by large number of
IPC criminalizes the acts of sexual organizations and individuals
minorities particularly men who have including Joint Action Council
sex with men and gay men. It Kannur and Shri B.P. Singhal, who
disproportionately impacts them 50 were interveners before the High
15 solely on the basis of their sexual Court. During the pendency of the
orientation. The provision runs special leave petitions several
counter to the constitutional values individuals and organizations filed
and the notion of human dignity IAs for permission to intervene. All
which is considered to be the 55 the IAs were allowed vide order
20 cornerstone of our Constitution. Sec.. dated 7.2.2011 and the applicants
377 IPC in its application to sexual were permitted to act as interveners.
acts of consenting adults in privacy
16. ARGUMENTS
discriminates a Sec.. of people solely
on the ground of their sexual 16.1. Shri Amrendra Sharan, Senior
25 orientation which is analogous to 60 Advocate appearing for the appellant
prohibited ground of sex. A in Civil Appeal arising out of SLP(C)
provision of law branding one Sec.. No.24334/2009 – Delhi Commission
of people as criminal based wholly for Protection of Child Rights led
on the State’s moral disapproval of arguments on behalf of those who
30 that class goes counter to the equality 65 have prayed for setting aside the
guaranteed under Articles 14 and 15 impugned order. … made the
under any standard of review. A following arguments:
constitutional provision must be 16.2 That the High Court committed
construed, not in a narrow and serious error by declaring Sec.. 377
35 constricted sense, but in a wide and 70 IPC as violative of Articles 21, 14
liberal manner so as to anticipate and and 15 of the Constitution insofar as

280
 it criminalizes consensual sexual acts by the academicians and such reports
of adults in private completely could not be relied upon for grant of
ignoring that the writ petition filed a declaration that the Sec.. impugned
by respondent no.1 did not contain 40 in the writ petition was violative of
5 foundational facts necessary for Articles 14 and 15 of the
pronouncing upon constitutionality Constitution….
of a statutory provision. Learned
16.5 That Sec..377 IPC is gender
counsel extensively referred to the
neutral and covers voluntary acts of
averments contained in the writ
45 carnal intercourse against the order
10 petition to show that respondent no.1
of nature irrespective of the gender of
had not placed any tangible material
the persons committing the act. They
before the High Court to show that
pointed out that the Sec.. impugned
Sec..377 had been used for
in the writ petition includes the acts
prosecution of homosexuals as a
50 of carnal intercourse between man
15 class and that few affidavits and
and man, man and woman and
unverified reports of some NGOs
woman and woman and submitted
relied upon by respondent no.1 could
that no Constitutional right vests in a
not supply basis for recording a
person to indulge in an activity
finding that homosexuals were being
55 which has the propensity to cause
20 singled out for a discriminatory
harm and any act which has the
treatment.
capacity to cause harm to others
16.3 The statistics incorporated in the cannot be validated. They
affidavit filed on behalf of NACO emphasized that anal intercourse
were wholly insufficient for 60 between two homosexuals is a high
25 recording a finding that Sec..377 IPC risk activity, which exposes both the
adversely affected control of participating homosexuals to the risk
HIV/AIDS amongst the homosexual of HIV/AIDS and this becomes even
community and that grave in case of a male bisexual
decriminalization will reduce the 65 having intercourse with female
30 number of such cases. partner who may not even be aware
of the activity of her partner and is
16.4 The High Court is not at all
yet exposed to high risk of
right in observing thatSec.. 377IPC
HIV/AIDS. They argued that
obstructs personality development of
70 Sec..377 IPC does not violate the
homosexuals or affects their self-
right to privacy and dignity
35 esteem because that observation is
guaranteed under Article 21 of the
solely based on the reports prepared

281
 Constitution. 16.6 That the impugned naturally demonstrated only in a way
order does not discuss the concept of as contemplated in Sec..377 IPC.
“carnal intercourse against the order Learned senior counsel submitted
of nature” and does not adequately 40 that what has been criminalized by
5 show how the Sec.. violates the right Sec..377 IPC is just the act,
to privacy and that also the right to independent of the sex of people or
privacy can be curtailed by following sexual orientation. Shri Giri further
due process of law and the Code of submitted that sufficient evidence is
Criminal Procedure prescribes a fair 45 not available to support the statement
10 procedure, which is required to be that Sec.. 377 IPC helps with
followed before any person charged HIV/AIDS prevention. He referred to
of committing an offence under the scientific study conducted by the
Sec..377 IPC can be punished. The National Institute of Health on
right to privacy does not include the 50 behavioral patterns and AIDS which
15 right to commit any offence as shows that HIV/AIDS is higher
defined under Sec..377 IPC or any among MSM. Learned counsel
other Sec..16.7 That the legislature submitted that same sex is more
has treated carnal intercourse against harmful to public health than
the order of nature as an offence and 55 opposite sex.
20 the High Court has not given reasons
16.14 Shri Huzefa Ahmadi submitted
for reading down the section.The
that the right to sexual orientation
presumption of constitutionality is
can always be restricted on the
strong and the right claimed should
principles of morality and health. …
have been directly violated by the
25 statute. Indirect violation is not 60 16.15 Shri Purshottaman Mulloli
sufficient for declaring Sec..377 IPC submitted that the data presented by
violative of Articles 14, 15 and 21 of NACO was fraudulent and
the Constitution. manufactured and the disparities and
contradictions were apparent. 16.16
16.13 Shri V. Giri, learned senior
65 Shri Sushil Kumar Jain argued …
30 counsel argued that Sec.. 77 IPC
that the matter should have been left
does not classify people into groups
to Parliament to decide as to what is
but it only describes an offence. He
moral and what is immoral and
submitted that the High Court made
whether the Sec.. in question should
two wrong assumptions: one, that
70 be retained in the statute book. Shri
35 sexual orientation is immutable and
Jain emphasized that mere possibility
two, that sexual orientation can be
of abuse of any particular provision

282
 cannot be a ground for declaring it 35 17.4 Sec.. 377 must be read in light
unconstitutional. of constitutional provisions which
include the “right to be let alone”.
17.Shri F.S. Nariman, Senior
The difference between obscene acts
Advocate appearing for Minna Saran
in private and public is statutorily
5 and others (parents of Lesbian Gay
40 recognized in Sec.. 294 IPC.
Bisexual and Transgender (LGBT)
children), led arguments on behalf of 17.5 The phraseology of
the learned counsel who supported Sec..377(‘Carnal intercourse against
the order of the High Court. Shri the order of nature’) is quaint and
10 Nariman… made the following archaic, it should be given a meaning
arguments: 45 which reflects the era when it was
enacted. (1860)
17.1 Interpretation of Sec..377 is not
in consonance with the scheme of the 17.6 Sec..377 should be interpreted
IPC, with established principles of in the context of its placement in the
15 interpretation and with the changing IPC as criminalizing an act in some
nature of society. 50 way adversely affecting the human
body and not an act which is an
17.2 That Sec..377 punishes whoever
offence against morals as dealt with
voluntarily has carnal intercourse
in Chapter XIV. The language of
against the order of nature. This
Sec..377 is qua harm of adverse
20 would render liable to punishment-
55 affection to the body which is the
(a) Any person who has intercourse
context in which the Sec.. appears. It
with his wife other than penile -
would have to be associated with
vaginal intercourse; (b) Any person
sexual assault. It is placed at the end
who has intercourse with a woman
of the Chapter XVI (Of Offences
25 without using a contraceptive.
60 affecting the human body) and not in
17.3 When the same act is committed Chapter XIV (Of Offences affecting
by 2 consenting males, and not one, the Public Health, Safety,
it cannot be regarded as an offence Convenience, Decency and Morals).
when- (i) The act is done in private;
17.9 Widespread abuse and
30 (ii) The act is not in the nature of
65 harassment of LGBT persons u/s 377
sexual assault, causing harm to one
has been incontrovertibly established
of the two individuals indulging in it;
n….
and (iii) No force or coercion is used
since there is mutual consent. 17.11 The appellants contend that
Sec.. 377 is too broadly phrased as it

283
 may include: (1) Carnal intercourse 19.2 By criminalizing these acts
between husband and wife; (2) which are an expression of the core
Carnal intercourse between man and sexual personality of homosexual
woman for pleasure without the men, Sec..377 makes them out to be
5 possibility of conception of a human 40 criminals with deleterious
being; (3) Use of contraceptives consequences thus impairing their
between man and woman; (4) Anal human dignity.
sex between husband and wife; (5)
19.8 Though facially neutral, an
Consenting carnal intercourse
analysis of the judgments shows that
10 between man and man; (6) Non
45 heterosexual couples have been
consenting carnal intercourse
practically excluded from the ambit
between man and man; (7) Carnal
of the section and homosexual men
intercourse with a child with or
are targeted by virtue of their
without consent.
association with the proscribed acts.
15 17.12 The section does not lay down
50 19.9 The criminalization of Sec..377
any principle or policy for exercise of
impacts homosexual men at a deep
discretion as to which of all these
level and restricts their right to
cases he may investigate. It is silent
dignity, personhood and identity,
on whether the offence can be
privacy, equality and right to health
20 committed taking within its ambit,
55 by criminalizing all forms of sexual
the most private of places, the home.
intercourse that homosexual men can
19. Shri Anand Grover, learned indulge in as the penetrative sexual
senior counsel for respondent No.1 acts they indulge in are essentially
made the following submissions: penile non vaginal. It impacts them
60 disproportionately as a class
25 19.1 Sec..377 criminalizes certain
especially because it restricts only
sexual acts covered by the
certain forms of sexual intercourse
expressions “carnal intercourse
that heterosexual persons can indulge
against the order of nature” between
in. The expression of homosexual
consenting adults in private. The
65 orientation which is an innate and
30 expression has been interpreted to
immutable characteristic of
imply penile non vaginal sex.
homosexual persons is criminalized
Though facially neutral, these acts
by Sec..377. The section ends up
are identified and perceived by the
criminalizing identity and not mere
broader society to be indulged in by
70 acts as it is usually homosexual or
35 homosexual men.
transgender persons who are

284
 associated with the sexual practices population. The Govt. has committed
proscribed under Sec..377…. to addressing the needs of those at
the greatest risk of HIV including
19.10 Criminalization creates a
40 MSM and transgendered persons.
culture of silence and intolerance in
The risk of contracting HIV through
5 society and perpetuates stigma and
unprotected penile anal sex is higher
discrimination against homosexuals.
than through penile vaginal sex. The
Homosexual persons are reluctant to
HIV prevalence in MSM is 7.3%
reveal their orientation to their
45 which is disproportionately higher
family. Those who have revealed
than in that of the general population
10 their orientation are faced with
which is less than 0.5%. The
shock, denial and rejection and some
prevalence continues to rise in many
are even pressurized through abuse
States and this is because of the
and marriage to cure themselves.
50 stigmatization of the MSM
They are subjected to conversion
population due to which they are not
15 therapies such as electro-convulsive
provided with sexual health services
therapy although homosexuality is no
including prevention services such as
longer considered a disease or a
condoms. Due to pressure, some
mental disorder but an alternate
55 MSM also marry women thus acting
variant of human sexuality and an
as a bridge population.
20 immutable characteristic which
Criminalization increases stigma and
cannot be changed. …
discrimination and acts as a barrier to
19.15 Right to health is an inherent HIV prevention programs. Sec..377
part of the right to life under Article 60 thwarts health services by preventing
21, it is recognized by the ICESC collection of HIV data, impeding
25 which has been domesticated through dissemination of information, forcing
Sec.. 2 of the Protection of Human harassment, threats and closure upon
Rights Act 1993. Article 12 of the organizations who work with MSM,
ICESCR requires states to take 65 preventing supply of condoms as it is
measures to protect and fulfil the seen as aiding an offence; limits
30 health of all persons. States are access to health services, driving the
obliged to ensure the availability and community underground; prevents
accessibility of health services, disclosure of symptoms; increases
information, education facilitates and 70 sexual violence and harassment
goods without discrimination against the community; and creates
35 especially to vulnerable and an absence of safe spaces leading to
marginalized sections of the risky sex. There are little if any

285
 negative consequences of de- only. This becomes clear when
criminalization and studies have Article 15(2) is applied to
shown a reduction in STDs (sexually transgendered persons who identify
transmitted diseases) and increased 40 as a third gender. For example,
5 psychological adjustment. Government of India has introduced
an option for “others” in the sex
19.17 Sec..377 distinguishes between
column of the passport application
carnal intercourse which is against
form. This can be achieved only if
the order of nature and not against
45 the expression “sex” is read to be
the order of nature. This
broader than the binary norm of
10 classification is unintelligible. It is
biological sex as man or woman. The
arbitrary and not scientific. Due to an
Constitution is a living document and
absence of legislative guidance it is
the Court can breathe content into
left to the Court to decide what
50 rights. The underlying purpose
constitutes against the order of
against sex discrimination is to
15 nature. The test in this regard has
prevent differential treatment for the
shifted from acts without possibility
reasons of non-conformity with
of procreation to imitative acts to acts
normal or natural sexual or gender
amounting to sexual perversity….
55 roles. Sex relations are intricately
19.19 Sec..377 violates Article 15 by tied to gender stereotypes.
20 discriminating on the ground of Accordingly, discrimination on the
sexual orientation as although ground of sex necessarily includes
facially neutral it treats homosexual discrimination on the basis of sexual
men unequally compared to 60 orientation. Like gender
heterosexuals and imposes an discrimination, discrimination on the
25 unequal burden on them. The general basis of sexual orientation is directed
purport of Article15 is to prohibit against an immutable and core
discrimination on the grounds characteristic of human personality.
enumerated therein. It is contended 65 Even international law recognizes
that as Article 15(3) uses the sexual orientation as being included
30 expression “women” the word sex in in the ground “sex”. The
Article 15(1) must partake the same determination of impact of a
character. However, it is submitted legislation must be taken in a
that Article 15(3) must not be 70 contextual manner taking into
allowed to limit the understanding of account the content, purpose,
35 Article 15(1) and reduce it to a characteristics and circumstances of
binary norm of man and woman the law. Sec..377 does not take into

286
 account the differences in individuals counsel submitted that in view of
in terms of their sexual orientation Sec..377 IPC which stigmatized
and makes sexual practices relevant homosexuality, not only
to and associated with a class of 40 homosexuals but their families face
5 homosexual person’s criminality. It stigma and discrimination. He
criminalizes acts which are normal referred to the recommendations
sexual expressions for homosexual made by 172nd Law Commission
men because they can only indulge in Report for deleting Sec..377 IPC, the
penetrative acts which are penile non 45 survey conducted by Outlook
10 vaginal. Distinction based on a Magazine giving the statistics of the
prohibited ground cannot be allowed persons who indulged in different
regardless of how laudable the object sexual practices, the support
is. If a law operates to discriminate extended by the eminent persons
against some persons only on the 50 including Swami Agnivesh, Soli J.
15 basis of a prohibited ground, it must Sorabjee (Senior Advocate), Capt.
be struck down…. Laxmi Sehgal, Aruna Roy, Prof.
Amartya Sen and Prof. Upendra Baxi
20. Shri Ashok Desai, learned senior
for deleting Sec..377 IPC and
counsel, who appeared for Shri
55 submitted that the impugned order
Shyam Benegal argued that Sec.. 377
should be upheld.
20 IPC, which is a pre-Constitution
statute, should be interpreted in a 21.The learned Attorney General,
manner which may ensure protection who argued the case as Amicus,
of freedom and dignity of the invited our attention to affidavit
individuals. He submitted that the 60 dated 1.3.2012 filed on behalf of the
25 Court should also take cognizance of Home Ministry to show that the
changing values and temporal Group of Ministers constituted for
reasonableness of a statute. Shri looking into the issue relating to
Desai emphasized that the attitude of constitutionality of Sec.. 377 IPC
the society is fast changing and the 65 recommended that there is no error in
30 acts which were treated as offence the impugned order, but the Supreme
should no longer be made punitive. Court may take final view in the
He referred to medical literature to matter….
show that sexuality is a human
22. Shri P.P. Malhotra, learned
condition and argued that it should
70 Additional Solicitor General, who
35 not be regarded as a depravity or a
appeared on behalf of the Ministry of
sin or a crime. Learned senior
Home Affairs, referred to the

287
 affidavit filed before the Delhi High counsel and perused the detailed
Court wherein the Ministry of Home written submissions filed by them.
Affairs had opposed de- We have also gone through the
criminalization of homosexuality and 40 voluminous literature placed on
5 argued that in its 42nd Report, the record and the judgments of other
Law Commission had recommended jurisdictions to which reference has
retention of Sec..377 IPC because the been made in the impugned order and
societal disapproval thereof was very on which reliance has been placed by
strong. Learned Additional Solicitor 45 the learned counsel who have
10 General submitted that the supported the order under challenge.
legislature, which represents the will
25. We shall first deal with the issue
of the people has decided not to
relating to the scope of judicial
delete and it is not for the Court to
review of legislations. Since Sec..377
import the extra-ordinary moral
50 IPC is a pre-Constitutional
15 values and thrust the same upon the
legislation, it has been adopted after
society. He emphasized that even
enactment of the Constitution, it will
after 60 years of independence,
be useful to analyze the ambit and
Parliament has not thought it proper
scope of the powers of the superior
to delete or amend Sec.. 377 IPC and
55 Courts to declare such a provision as
20 there is no warrant for the High
unconstitutional. Articles 13, 14, 15,
Court to have declared the provision
19, 21, 32, 226 and 372 of the
as ultra vires Articles 14,15 and 21 of
Constitution, which have bearing on
the Constitution.
the issue mentioned herein above. …
23. Shri Mohan Jain, learned
60 26. A plain reading of these Articles
25 Additional Solicitor General who
suggests that the High Court and this
appeared on behalf of the Ministry of
Court are empowered to declare as
Health, submitted that because of
void any pre-Constitutional law to
their risky sexual behavior, MSM
the extent of its inconsistency with
and female sex workers are at a high
65 the Constitution and any law enacted
30 risk of getting HIV/AIDS as
post the enactment of the
compared to normal human beings.
Constitution to the extent that it takes
He pointed out that as in 2009, the
away or abridges the rights conferred
estimated number of MSM was 12.4
by Part III of the Constitution. In
lakhs.
70 fact, a constitutional duty has been
35 24. We have considered the cast upon this Court to test the laws
arguments/submissions of the learned of the land on the touchstone of the

288
 Constitution and provide appropriate and change the law or enact a new
remedy if and when called upon to law. In light of this, both pre and post
do so. Seen in this light the power of Constitutional laws are
judicial review over legislations is 40 manifestations of the will of the
5 plenary. However, keeping in mind people of India through the
the importance of separation of Parliament and are presumed to be
powers and out of a sense of constitutional.
deference to the value of democracy
29. The doctrine of severability and
that parliamentary acts embody, self-
45 the practice of reading down a statute
10 restraint has been exercised by the
both arise out of the principle of
judiciary when dealing with
presumption of constitutionality and
challenges to the constitutionality of
are specifically recognized in Article
laws. This form of restraint has
13 which renders the law, which is
manifested itself in the principle of
50 pre-Constitutional to be void only to
15 presumption of constitutionality.
the extent of inconsistency with the
Presumption of constitutionality: Constitution….
28. Every legislation enacted by 30. Another significant canon of
Parliament or State Legislature determination of constitutionality is
carries with it a presumption of 55 that the Courts would be reluctant to
20 constitutionality. This is founded on declare a law invalid or ultra vires on
the premise that the legislature, being account of unconstitutionality. The
a representative body of the people Courts would accept an
and accountable to them is aware of interpretation, which would be in
their needs and acts in their best 60 favor of constitutionality rather than
25 interest within the confines of the the one which would render the law
Constitution. There is nothing to unconstitutional. Declaring the law
suggest that this principle would not unconstitutional is one of the last
apply to pre-Constitutional laws resorts taken by the Courts. The
which have been adopted by the 65 Courts would preferably put into
30 Parliament and used with or without service the principle of 'reading
amendment. If no amendment is down' or 'reading into' the provision
made to a particular law it may to make it effective, workable and
represent a decision that the ensure the attainment of the object of
Legislature has taken to leave the law 70 the Act. These are the principles
35 as it is and this decision is no which clearly emerge from the
different from a decision to amend consistent view taken by this Court

289
 in its various pronouncements 35 (iv) The court can resort to reading
including the recent judgment in down a law in order to save it from
Namit Sharma v. Union of India being rendered unconstitutional. But
[(2013)1 SCC 745]. while doing so, it cannot change the
essence of the law and create a new
5 31. From the above noted judgments,
40 law which in its opinion is more
the following principles can be culled
desirable.
out:
32. Applying the afore stated
(i)The High Court and Supreme
principles to the case in hand, we
Court of India are empowered to
deem it proper to observe that while
10 declare as void any law, whether
45 the High Court and this Court are
enacted prior to the enactment of the
empowered to review the
Constitution or after. Such power can
constitutionality of Sec..377 IPC and
be exercised to the extent of
strike it down to the extent of its
inconsistency with the
inconsistency with the Constitution,
15 Constitution/contravention of Part
50 self-restraint must be exercised and
III.
the analysis must be guided by the
(ii) There is a presumption of presumption of constitutionality.
constitutionality in favor of all laws, After the adoption of the IPC in
including pre Constitutional laws as 1950, around 30 amendments have
20 the Parliament, in its capacity as the 55 been made to the statute, the most
representative of the people, is recent being in 2013 which
deemed to act for the benefit of the specifically deals with sexual
people in light of their needs and the offences, a category to which Sec..
constraints of the Constitution. 377 IPC belongs. The 172nd Law
25 (iii)The doctrine of severability seeks 60 Commission Report specifically
to ensure that only that portion of the recommended deletion of that
law which is unconstitutional is so section. and the issue has repeatedly
declared and the remainder is saved. come up for debate. However, the
This doctrine should be applied Legislature has chosen not to amend
30 keeping in mind the scheme and 65 the law or revisit it. This shows that
purpose of the law and the intention Parliament, which is undisputedly the
of the Legislature and should be representative body of the people of
avoided where the two portions are India has not thought it proper to
inextricably mixed with one another. delete the provision. Such a
70 conclusion is further strengthened by

290
 the fact that despite the decision of on behalf of the Ministry of Health
the Union of India to not challenge in and Family Welfare, Department of
appeal the order of the Delhi High AIDS Control it has been averred
Court, the Parliament has not made 40 that estimated HIV prevalence
5 any amendment in the law. While among FSW (female sex workers) is
this does not make the law immune 4.60% to 4.94%, among MSM (men
from constitutional challenge, it must who have sex with men) is 6.54% to
nonetheless guide our understanding 7.23% and IDU (injecting drug
of character, scope, ambit and 45 users) is 9.42% to 10.30%. The total
10 import. population of MSM as in 2006 was
estimated to be 25,00,000 and 10%
33. It is, therefore, apposite to say
of them are at risk of HIV. The State-
that unless a clear constitutional
wise break up of estimated size of
violation is proved, this Court is not
50 high risk men who have sex with
empowered to strike down a law
men has been given in paragraphs 13
15 merely by virtue of its falling into
and 14 of the affidavit. In paragraph
disuse or the perception of the
19, the State-wise details of total
society having changed as regards
adult population, estimated adult
the legitimacy of its purpose and its
55 HIV prevalence and estimated
need.
number of HIV infections as in 2009
20 40. The writ petition filed by has been given. These details are
respondent No.1 was singularly wholly insufficient for recording a
laconic in as much as except giving finding that homosexuals, gays, etc.,
brief detail of the work being done 60 are being subjected to discriminatory
by it for HIV prevention targeting treatment either by State or its
25 MSM community, it miserably failed agencies or the society.
to furnish the particulars of the
42. Those who indulge in carnal
incidents of discriminatory attitude
intercourse in the ordinary course
exhibited by the State agencies
65 and those who indulge in carnal
towards sexual minorities and
intercourse against the order of
30 consequential denial of basic human
nature constitute different classes and
rights to them. Respondent No.1 has
the people falling State of U.P. v.
also not furnished the particulars of
Ram Swarup 119 in the later
the cases involving harassment and
70 category cannot claim that Sec..377
assault from public and public
suffers from the vice of arbitrariness
35 authorities to sexual minorities. Only
and irrational classification. What
in the affidavit filed before this Court

291
 Sec..377 does is merely to define the India [(1982) 1 SCC 271], a
particular offence and prescribe Constitution Bench observed as
punishment for the same which can follows:
be awarded if in the trial conducted
40 “67. The requirement that crimes
5 in accordance with the provisions of
must be defined with appropriate
the Code of Criminal Procedure and
definiteness is regarded as a
other statutes of the same family the
fundamental concept in criminal law
person is found guilty. Therefore, the
and must now be regarded as a
High Court was not right in declaring
45 pervading theme of our Constitution
10 Sec..377 IPC ultra vires Articles 14
since the decision in Maneka Gandhi
and 15 of the Constitution.
[1978] 2 SCR 621. The underlying
43.While reading down Sec..377 principle is that every person is
IPC, the Division Bench of the High entitled to be informed as to what the
Court overlooked that a miniscule 50 State commands or forbids and that
15 fraction of the country’s population the life and liberty of a person cannot
constitutes lesbians, gays, bisexuals be put in peril on an ambiguity.
or transgender and in last more than However, even in the domain of
150 years less than 200 persons have criminal law, the processes of which
been prosecuted (as per the reported 55 can result in the taking away of life
20 orders) for committing offence under itself, no more than a reasonable
Sec..377 IPC and this cannot be degree of certainty has to be accepted
made sound basis for declaring that as a fact. Neither the criminal law nor
Sec.. ultra vires the provisions of the Constitution requires the
Articles 14, 15 and 21 of the 60 application of impossible standards
25 Constitution. and therefore, what is expected is
that the language of the law must
44. The vagueness and arbitrariness
contain an adequate warning of the
go to the root of a provision and may
conduct which may fall within the
render it unconstitutional, making its
65 prescribed area, when measured by
implementation a matter of
common understanding. In criminal
30 unfettered discretion. This is
law, the legislature frequently uses
especially so in case of penal statues.
vague expressions like 'bring into
However, while analyzing a
hatred or contempt', 'maintenance of
provision the vagaries of language
70 harmony between different religious
must be borne in mind and prior
groups' or 'likely to cause
35 application of the law must be
disharmony or hatred or ill-will', or
considered. In A.K. Roy v. Union of

292
 'annoyance to the public', (see In our opinion, this treatment is
Sec..124A, Sec..153A(1)(b), neither mandated by the Sec.. nor
Sec..153B(1)(c), and Sec..268 of the condoned by it and the mere fact that
Penal Code). These expressions, 40 the Sec.. is misused by police
5 though they are difficult to define, do authorities and others is not a
not elude a just application to reflection of the vires of the section.
practical situations. The use of It might be a relevant factor for the
language carries with it the Legislature to consider while judging
inconvenience of the imperfections 45 the desirability of amending Sec..377
10 of language.” IPC. …
45. We may now deal with the issue 52. In its anxiety to protect the so-
of violation of Article 21of the called rights of LGBT persons and to
Constitution. The requirement of declare that Sec..377 IPC violates the
substantive due process has been 50 right to privacy, autonomy and
15 read into the Indian Constitution dignity, the High Court has
through a combined reading of extensively relied upon the
Articles 14, 21 and 19 and it has been judgments of other jurisdictions.
held as a test which is required to be Though these judgments shed
satisfied while judging the 55 considerable light on various aspects
20 constitutionality of a provision which of this right and are informative in
purports to restrict or limit the right relation to the plight of sexual
to life and liberty, including the minorities, we feel that they cannot
rights of privacy, dignity and be applied blindfolded for deciding
autonomy, as envisaged under 60 the constitutionality of the law
25 Article 21. In order to fulfill this test, enacted by the Indian legislature….
the law must not only be competently
54. In view of the above discussion,
legislated but it must also be just, fair
we hold that Sec..377 IPC does not
and reasonable. Arising from this are
suffer from the vice of
the notions of legitimate state interest
65 unconstitutionality and the
30 and the principle of proportionality.
declaration made by the Division
51. Respondent No.1 attacked Bench of the High court is legally
Sec..377 IPC on the ground that the unsustainable.
same has been used to perpetrate
55.The appeals are accordingly
harassment, blackmail and torture on
70 allowed, the impugned order is set
35 certain persons, especially those
belonging to the LGBT community.

293
 aside and the writ petition filed by the hands of police, and holding
respondent No.1 is dismissed. laconically that theirs was not a
complaint against denial of identity
56.While parting with the case, we
rights but an unsustainable plea for
would like to make it clear that this
40 immunity for the performance of acts
5 Court has merely pronounced on the
contrary to “nature”. SC justices do
correctness of the view taken by the
not like their HC brethren to have the
Delhi High Court on the
last say on constitutional matters, and
constitutionality of Sec..377 IPC and
our Constitution allows them that last
found that the said section. does not
45 say. The only “sin” of Naz 1 was to
10 suffer from any constitutional
write a virtually unappealable
infirmity. Notwithstanding this
decision, for it covered every aspect
verdict, the competent legislature
of the matter. Presumably, the HC
shall be free to consider the
did so because it was directed by the
desirability and propriety of deleting
50 SC on 3 November 2004 to consider
15 Sec..377 IPC from the statute book
a “fresh decision” on the
or amend the same as per the
constitutional validity of Sec..377,
suggestion made by the Attorney
overruling its own earlier decision
General.
that “the petition cannot be filed to
55 test the validity of the legislation,
20 Naz 2: A Critique - Upendra Baxi and…it cannot be entertained to
(1) The Naz 2 decision of the examine the academic challenge”.
Supreme Court (SC) reverses the The division bench of the HC held on
progressive, egalitarian, inclusive, 2 July 2009: We declare that
and constitutionally wise decision of 60 Sec..377 IPC, insofar it criminalizes
25 the Delhi High Court (HC) (2) and it consensual sexual acts of adults in
has been criticized by liberal opinion private, is violative of Articles 21, 14
in India3 and everywhere. In one fell and 15 of the Constitution. The
swoop, Naz 2 took away everything provisions of Sec..377 IPC will
that the Delhi HC had conferred on 65 continue to govern non-consensual
30 sexual minorities. The SC denied not penile non-vaginal sex and penile
merely the right to perform same sex non-vaginal sex involving minors.
acts but also their status as By ‘adult’ we mean everyone who is
minorities, describing them as 18 years of age and above. A person
“minuscule”, ruling as “not proven” 70 below 18 would be presumed not to
35 the terror and torture they undergo at be able to consent to a sexual act.
This clarification will hold till, of

294
 course, Parliament chooses to amend undiminished by what the SC now
the law to effectuate the says – that the courts may not in the
recommendation of the Law guise of reading down a law “change
Commission of India in its 172nd 40 the essence of the law and create a
5 Report which we believe removes a new law which in its opinion is more
great deal of confusion. Secondly, we desirable”. The question is whether
clarify that our judgment will not Naz 1, in arriving at its decision,
result in the re-opening of criminal created a “new law” or changed “the
cases involving Sec.. 377 IPC that 45 essence of law … in the guise of
10 have already attained finality. reading it down.” The very SC which
overrules Naz 1 on this ground cites
Even as we note that Naz 2 does not
a number of precedents where the
make constitutional sense, at the
Court has held “reading down” as a
outset, one must thank the apex court
50 constitutionally permissible judicial
for small mercies. It does not address
technique. How, besides, is the Court
15 the argument urged by a majority of
to read down a colonial statute
petitioners that conferral of gay
without considering the alternatives
rights violates the fundamental right
offered by a vastly changed
to conscience and freedom of
55 postcolonial context? Fallacious
religious belief and practice. Clearly,
Arguments The SC develops two
20 no one is constrained to practice
arguments, both fallacious. The first
same sex unions by the plea to
is the insularity argument. The SC,
decriminalize lesbian, gay, bisexual,
itself never loathe to learn from
and transgender (LGBT) conduct. To
60 comparative constitutional
this extent, the Bharatiya Janata
authorities, now maintains that
25 Party’s (BJP) opposition to
though these foreign judgments
legalization of same sex unions does
(cited copiously in Naz 1) “shed
not make constitutional sense; the
considerable light on various aspects
verdict can in no sense be considered
65 of this right and are informative in
as an acceptance of the Singhal
relation to the plight of sexual
30 review petition in this case. The BJP
minorities, we feel that they cannot
and Samajwadi Party objection that
be applied blindfolded for deciding
homosexuality flouts Hindu or Indian
the constitutionality of the law
culture finds no support either way in
70 enacted by the Indian legislature”.
Naz 2; in any event, the Naz 1 ruling
These foreign precedents were not
35 that the law was colonial and not
cited “blind-foldedly” by Naz 1 to
rooted in Indian culture is
decide the validity of Sec..377 Indian

295
 Penal Code (IPC), but to testify to the last say. This must surely explain
the comparative constitutional executive and parliamentary
change ushered in by constitutional 40 deference to the SC. Fifth, this
courts. The second argumentative applies most compellingly to sexual
5 strategy in Naz 2 is that it was left minorities that have little or no
open for Parliament to amend the representation in legislatures or civil
law, if it so wished. That it did not services and it especially applies to
wish to do so is true; as the Court 45 members of the third sex or gender.
notes, in 30-odd amendments to the Sixth, if the Court were to abdicate
10 IPC, Parliament never amended this position, especially on the
Sec..377. It could also have noted constitutional validity of pre-
that the Verma Committee report, constitutional laws, it must be a
2013 did not speak at all to Sec..377. 50 decision of a bench larger than two
But this reasoning, too, is fallacious justices as Kesavananda was decided
15 on many counts. The first is that the by the full Court. The Naz 2 holding
Government of India itself argued against the indictment of the
before the SC that it “does not find unconstitutionality of Sec..377 is
any legal error in the judgment of the 55 specious, to say the least. It finds
High Court and accepts the “reasonable classification” – those
20 correctness of the same” (and now “who indulge in carnal intercourse in
has reiterated the position in a review the ordinary course and those who
petition filed before the Court). indulge in carnal intercourse against
Second, it has “not filed any appeal 60 the order of nature constitute
against the judgment of the High different classes”, it rules.
25 Court”. Third, this executive Accordingly, “the people falling in
endorsement signifies that the matter the later (sic) category cannot claim
is best adjudged by the courts, not by that Sec..377 suffers from the vice of
representative institutions, because at 65 arbitrariness and irrational
stake is the question of the classification”. This is strange
30 fundamental and human rights of reasoning, indeed. The doctrine, no
sexual minorities of which the Court doubt, talks about rational
is the final arbiter. Fourth, the Court classification; but what makes
has itself assertively adopted the 70 classification rational is that there be
latter position – in matters involving a demonstrable nexus between the
35 allegations of violations of class and objectives of the law. The
fundamental human rights, executive objective of the law here was to
or legislative inaction, courts have discriminate between those who had

296
 carnal intercourse against the course sovereign norm. Further, there exist
of nature and those who had carnal no socially accepted norms outside
intercourse not so contrary. This 40 the regime of heterosexuality that
objective is impossible of attainment, will help us decide whether or not
5 and by definition not available to anal sex, fellatio, or cunnilingus is an
same sex congress. But the question act “contrary to nature”. The Court
was not about the objective of the misdirects itself when it holds that
law but whether the law should have 45 the “act of putting a male-organ in
such an objective in the first place. the mouth of a victim for the
10 What is rational is not always purposes of satisfying sexual appetite
reasonable. Rawls (1993, 1999) would be an act of carnal intercourse
makes this distinction clear and against the order of nature”,
cogent by demonstrating that the 50 especially when it recognizes as “true
rational (efficient means to reach a that the theory that the sexual
15 desired result) may not always be intercourse is only meant for the
reasonable (justifying both the means purpose of conception is an outdated
and the result); that what is desired theory”. Body and Personhood issue
does not make it rational nor may it 55 in all of Naz 2 is the construction of
be construed as reasonable. A the human body and personhood.
20 classification that renders certain Relying partly on a criminal law
number of people right-less may amendment of 2013, their lordships
count as “rational” but for that reason reduce the human body to certain
alone can never be called reasonable 60 orifices and reduce romantic love to
or even constitutional. Naz 2, an affair of orifices. Some of these
25 however, rules that “Sec..377 IPC were described as natural/legal and
does not criminalize a particular some as unnatural/inherently
people or identity or orientation. It criminal. To the latter belonged,
merely identifies certain acts which if 65 according to the learned justices, anal
committed would constitute an sex, fellatio, and cunnilingus. But
30 offence. Such a prohibition regulates this reliance on 2013 amendments to
sexual conduct regardless of gender the criminal law is misleading
identity and orientation.” This is because Sec.. 375 defines the offence
curious reasoning, to say the least, 70 of rape against a woman as a non-
because same sex orientation and consensual act and defines that act as
35 conduct become a matter of “gender inclusive of non-vaginal penetration.
identity” in a society where The offence is not any action
heterosexuality becomes the contrary to nature but only includes

297
 non-penetrative sex as well. Marital “unnatural”, that the classification
rape is, even in the face of the Verma made by the law is “rational”, and
Committee recommendations, not an 40 that the LGBT community is but a
offence. Accordingly, even consent “minuscule” faction of Indian society
5 that involves anal sex, or fellatio, or for whom the law may not be altered.
cunnilingus among parties to The review petitions about to be filed
marriage amounts to an act or before the SC would err grievously
conduct that attracts Sec.. 377 IPC. 45 were they not to argue otherwise –
Many a matrimonial judge has that is, the Court makes it impossible
10 considered this to be ground of for Parliament to amend the criminal
cruelty, a ground strong enough to law. The Court does so by upholding
order a judicial separation and Sec..377 IPC as constitutional and by
divorce, thus indirectly legislating 50 actually ruling that certain acts are
marital rape. And now we have at contrary to nature. The Court further
15 least two SC rulings that accept as says, in the concluding para:
outdated the idea that sex is only for Notwithstanding this verdict, the
reproduction – a view that should at competent legislature shall be free to
least lead the Court to say that such 55 consider the desirability and
acts/conduct in private, where propriety of deleting Sec.. 377 IPC
20 consensual, are not contrary to from the statute book or amend the
nature. Naz 2 does not tell us why same as per the suggestion made by
fellatio is inherently an act contrary the Attorney General. In the first
to nature. Nor does it say why 60 place, even without such an
because not all such conduct can be observation, Parliament would have
25 defined by the penal code, offences the privilege to think and act
against nature constitute a differently than the Court; it can by
constitutional category. It does not statute overrule any judicial decision.
further tell us why the heterosexual 65 Second, normally, the advice of the
position is not contrary to nature. Just attorney general is not necessary or
30 because such a position is adopted by binding on Parliament, but the Court
the majority, it does not render otiose here stipulates this. Assuming that
the human right to have a different the Court means that the advice of
sexual orientation or conduct. 70 the attorney general is necessary only
Leaving the politics of law reform for amending the law, how is he to
35 here aside, the deeper meaning of suggest, given Naz 2, that Sec.. 377
Naz 2 is that Parliament should not may still be amended? Could he
make “natural” that which is suggest that Parliament perform an

298
 essential judicial function – that of (4) despite being a self-confessed
determining a “reasonable Marxian, upheld against a majority
classification” made by the code and the rights of Auroville, as under the
upheld by the Court as 40 Constitution the teachings of Sri
5 unconstitutional? Third, how is the Aurobindo and the Mother
attorney general, given Naz 2, to constituted a religion: Chanting of
suggest the deletion of Sec..377? The prayer appears to me to be mere
judicial invitation to Parliament jingoism and observance of ritual,
seems not to change the law but to 45 plain superstition. But my views
10 reaffirm the position of indifference about religion, my prejudices and my
it has so far maintained. predilections, if they be such, are
entirely irrelevant. So are the views
Many Fault Lines: In sum, Naz 2 is
of the credulous, the bigot and the
a poorly reasoned decision; it is self-
50 zealot. So also the views of the
contradictory; and it has many a fault
faithful, the devout, the Acharya, the
15 line, the most perverse being its
Moulvi, the Padre and the Bhikshu
conception of sexuality. No matter
each of whom may claim his as the
how read, its conception of
only true or revealed religion. For
constitutionality and adjudicatory
55 our present purpose, we are
leadership is grossly inconsistent
concerned with what the people of
20 with the very ones entertained by the
the Socialist, Secular, Democratic
Court itself, and it is incoherent in its
Republic of India, who have given
operative result. One hopes that the
each of its citizens Freedom of
apex court will reverse itself on the
60 conscience and the right to freely
curative petition and if it needs
profess, practice and propagate
25 further exploration, convene a larger
religion and who have given every
bench, possibly of the size of
religious denomination the right to
Kesavananda, if not a full Court. At
freely manage its religious affairs,
stake for the Court is nothing less
65 mean by the expressions ‘religion’
than its institutional integrity; at
and ‘religious denomination’. We are
30 stake for millions that constitute
concerned with what these
sexual minorities is nothing less than
expressions are designed to mean in
their fundamental human right to live
Articles 25 and 26 of the
with dignity. In the review, their
70 Constitution. Any Freedom or Right
lordships may do well to recall the
involving the conscience must
35 words of justice O Chinnappa Reddy,
naturally receive a wide
who in S P Mittal v. Union of India,
interpretation and the expression

299
 ‘religion’ and ‘religious prospectively upheld the ban on such
denomination’ must therefore, be conduct.
interpreted in no narrow, stifling
sense but in a liberal, expansive way
5 (Mittal at Para 2) The very same
“liberal and expansive” view is 40
called for in adjudging the claims of
sexual minorities. Judicial disgust or
disagreement at particular acts or
10 conduct is not the way in which
constitutional judgments should ever
be made.
References: 45
1 Upendra Baxi, “Naz 2 A Critique”.
15 Vol. XIIX (6) EPW 12, February 8,
2014.
2 See Baxi, Upendra (2011):
“Dignity With and Since Naz” in
Arvind Narrian and Alok Gupta
50
20 (ed.), Law Like Love: Queer
Perspectives on Law (Delhi: Yoda
Press), pp 231-52.
3 See Sheikh, Danish and Siddharth
Narrain (2013): “Struggling for
25 Reason: Fundamental Rights and the
Wrongs of the Supreme Court”,
55
Economic & Political Weekly, Vol
48,
4. No 52. Note that the decision only
30 leaves the position of “non-vaginal
sex and penile non-vaginal sex
involving minors” for clarification by
Parliament but has liberated 60
consensual sex in private among
35 adults from criminality; and it
300
 33. Miscellaneous Case No. 1169 of
1994) under Sec.. 482 of the Code of
State of Orissa v. Sharat Chandra
Criminal Procedure (for short, the
Sahu (1996) 6 SCC 435
Code) in the Orissa High Court for
S. SAGHIR AHMAD, J. – 40 quashing the proceedings and the
5 1. Respondent 1 is the husband of charges framed against him. The
Respondent 2 who made a complaint High Court by its impugned
in writing to the Women‘s judgment dated 3-5-1995 partly
Commission setting out there in that allowed the petition with the findings
Respondent 1 had contracted a 45 that since Respondent 2 had not
10 second marriage and had thus herself personally filed the complaint
committed an offence punishable under Sec.. 494 IPC, its cognizance
under Sec.. 494 IPC. It was also could not have been taken by the
alleged that ever since the marriage Magistrate in view of the provisions
with her, he had been making 50 contained in Sec.. 198(1)(c) of the
15 demands for money being paid to Code. Consequently, the charge
him which amounted to her framed by the Magistrate under Sec..
harassment and constituted the 494 IPC was quashed but the charge
offence punishable under Sec.. 498-A under Sec.. 498-A IPC was
IPC for which Respondent 1 was 55 maintained and the petition under
20 liable to be punished. Sec.. 482 Criminal Procedure Code
to that extent was dismissed.
2. The Women‘s Commission sent
the complaint to the police station 5. The judgment of the High Court so
where GR Case No. 418 of 1993 was far as it relates to the quashing of the
registered against Respondent 1. The 60 charge under Sec.. 494 IPC, is
25 police investigated the case and filed wholly erroneous and is based on
a charge-sheet in the Court of Sub- complete ignorance of the relevant
Divisional Judicial Magistrate, statutory provisions. The first
Anandpur, who, after perusal of the Schedule appended to the Code
charge-sheet, framed charges against 65 indicates that the offence under Sec..
30 Respondent 1 under Sec.. 498-A as 494 IPC is non-cognizable and
also under Sec.. 494 IPC. bailable. It is thus obvious that the
police could not take cognizance of
3. Aggrieved by the framing of the this offence and that a complaint had
charge by the Sub-Divisional Judicial 70 to be filed before a Magistrate.
Magistrate, Anandpur, Respondent 1
35 filed a petition (Criminal
301
 8. These provisions set out the is cognizable, the case shall be
prohibition for the court from taking deemed to be a cognizable case
cognizance of an offence punishable notwithstanding that the other
under Chapter XX of the Indian 40 offence or offences are non-
5 Penal Code. The cognizance, cognizable.
however, can be taken only if the
11. Sub-section. (4) creates a legal
complaint is made by the person
fiction and provides that although a
aggrieved by the offence. Clause (c)
case may comprise of several
appended to the proviso to sub-
45 offences of which some are
10 section. (1) provides that where a
cognizable and others are not, it
person aggrieved is the wife, a
would not be open to the police to
complaint may be made on her behalf
investigate the cognizable offences
by her father, mother, brother, sister,
only and omit the non-cognizable
son or daughter or other relations
50 offences. Since the whole case
15 mentioned therein who are related to
(comprising of cognizable and non-
her by blood, marriage or adoption.
cognizable offences) is to be treated
9. The High Court relied upon the as cognizable, the police had no
provisions contained in clause (c) option but to investigate the whole of
and held that since the wife herself 55 the case and to submit a charge-sheet
20 had not filed the complaint and in respect of all the offences,
Women‘s Commission had cognizable or non-cognizable both,
complained to the police, the Sub- provided it is found by the police
Divisional Judicial Magistrate, during investigation that the offences
Anandpur could not legally take 60 appear, prima facie, to have been
25 cognizance of the offence. In laying committed.
down this proposition, the High
12. Sub-section. (4) of Sec.. 155 is a
Court forgot that the other offence
new provision introduced for the first
namely, the offence under Sec.. 498-
time in the Code in 1973. This was
A IPC was a cognizable offence and
65 done to overcome the controversy
30 the police was 20 entitled to take
about investigation of non-
cognizance of the offence
cognizable offences by the police
irrespective of the person who gave
without the leave of the Magistrate.
the first information to it.
The statutory provision is specific,
10. Sub-section. (4) of Sec.. 155 70 precise and clear and there is no
35 clearly provides that where the case ambiguity in the language employed
relates to two offences of which one in sub-section (4). It is apparent that

302
 if the facts reported to the police the proceedings relating thereto is set
disclose both cognizable and non- aside with the direction to the
cognizable offences, the police Magistrate to proceed with the case
would be acting within the scope of and dispose of it expeditiously.
5 its authority in investigating both the
40
offences as the legal fiction enacted
in sub-section (4) provides that even
a non-cognizable case shall, in that
situation, be treated as cognizable.
10 13. This Court in Pravin Chandra
Mody v. State of A.P. [AIR 1965 SC
1185] has held that while 45
investigating a cognizable offence
and presenting a charge-sheet for it,
15 the police are not debarred from
investigating any non-cognizable
offence arising out of the same facts
and including them in the charge-
sheet.
50
20 14. The High Court was thus clearly
in error in quashing the charge under
Sec..494 IPC on the ground that the
trial court could not take cognizance
of that offence unless a complaint
25 was filed personally by the wife or
any other near relation contemplated
55
by clause (c) of the proviso to Sec..
198(1).
15. The judgment of the High Court
30 being erroneous has to be set aside.
The appeal is consequently allowed.
The judgment and order dated 3-5-
1995 passed by the Orissa High 60
Court insofar as it purports to quash
35 the charge under Sec..494 IPC and

303
 34. 3. On April 8, 1948, Ram Kumar
Ram filed a declaration to that effect.
Pyare Lal Bhargava v. State of 40 The case of the prosecution is that
Rajasthan AIR 1963 SC 1094 Ram Kumar Ram was a friend of the
K. SUBBA RAO, J. – appellant. Pyarelal Bhargava, who
was a Superintendent in the Chief
5 1. This appeal by special leave is Engineer's Office, Alwar. At the
directed against the decision of the 45 instance of Ram Kumar Ram,
High Court of Rajasthan in Criminal Pyarelal Bhargava got the file Ex.
Revision No. 237 of 1956 confirming PA/ 1 from the Secretariat through
that of the Sessions judge, Alwar, Bishan Swarup, a clerk, before
10 convicting the appellant under s. December 16, 1948, took the file to
379 of the Indian Penal Code and 50 his house sometime between
sentencing him to a fine of Rs. 200/-. December 15 and 16,1948, made it
available to Ram Kumar Ram for
2. To appreciate the questions raised 'removing the affidavit filed by him
in this appeal the following facts, on April 9, 1948, and the application,
15 either admitted or found by the High 55 Ex. P. W. 15/B from the file and
Court, may be stated. On November substituting in their place another
24, 1945, one Ram Kumar Ram letter Ex. PC and another application
obtained permission, Ex. PB, from Ex. PB. After replacing the said
the Government of tile former Alwar documents, Ram Kumar Ram made
20 State to supply electricity at Rajgarh, 60 an application to the Chief Engineer
Khertal and Kherli. Thereafter, he on December 24, 1948, that the
entered into partnership with 4 others licence should not be issued in the
with an understanding that the name of the company.
licence would be transferred to a
25 company that would be floated by the 4. After the discovery of the
said partnership. After the company 65 tampering of the said documents,
was formed, it put in an application Pyarelal and Ram Kumar were
to the Government through its prosecuted before the Sub-Divisional
managing agents for the issue of a Magistrate, Alwar--the former for an
30 licence in its favour. Ex. P. W. 15/B offence under Sec..379 and Sec..465,
is that application. On the advice 70 read with Sec..109, of the.
given by the Government Advocate, Indian Penal Code, and the latter for
the Government required Ram an offence under Sec..465 and
Kumar Ram to file a declaration Sec..379, read with Sec..109 of the
35 attested by a Magistrate with regard Indian Penal Code. The Sub-
to the transfer of his rights and the 75 Divisional Magistrate convicted both
licence to the company. the accused under the said sections

304
 and sentenced them on both the confession in law, was suggested but
counts. On appeal the Sessions judge not pursued and, therefore, nothing
set aside the Conviction need be said about it.
under Sec..465, but maintained the
5 conviction and sentence of Pyarelal 5. The first question turns upon the
Bhargava under Sec..379, and Ram 45 interpretation of the provisions'
Kumar Ram under Sec..379, read of Sec..24 of the Evidence Act and
with Sec..109, of the Indian Penal its application to the facts found in
Code. Ram Kumar Ram was this case. Sec..24 of the Evidence Act
10 sentenced to pay a fine of Rs. 500/- lays down that a confession caused
and Pyarelal Bhargava to pay a fine 50 by inducement, threat or promise is
of Rs. 200/-. Against these irrelevant in criminal proceedings
convictions both the accused filed under certain circumstances. Under
revisions to the High Court and the that section a confession would be
15 High Court set aside the conviction irrelevant if the following conditions
and sentence of Ram Kumar Ram but 55 were satisfied: (1) it should appear to
confirmed those of Pyarelal the court to have been caused by any
Bhargava. Pyarelal Bhargava has inducement, threat or promise; (2)
preferred the present appeal. Learned the said threat, inducement or
20 counsel for the appellant raised promise must have reference to the
before us three points, namely, (1) 60 charge against the accused person;
the High Court has wrongly relied (3) it shall proceed from a personal
upon the confession made by the authority; and (4) the court shall be
accused before Shri P. N. Singhal, of the opinion that the said
25 Officiating Chief Secretary to the inducement, threat or promise is
Matsya Government at that time, as 65 sufficient to give the accused per-son
that confession was not made grounds which would appear to him
voluntarily and, therefore, irrelevant reasonable in supposing that he
under Sec..24 of the Evidence Act; would gain an advantage or avoid
30 (2) the said confession having been any evil of a temporal nature in
retracted by the appellant, the High 70 reference to the proceedings against
Court should not have relied upon it him. The crucial word in the first
as it was not corroborated in material ingredient is the expression "
particulars; and (3) on the facts found appears". The appropriate meaning of
35 'the offence of theft has not been the word "appears" is "seems". It
made out within the meaning 75 imports a lesser degree of probability
of Sec..379 of the Indian Penal Code. than proof. Sec..3 of the Evidence
Another argument, namely, that the Act says:
statement made by Pyarelal Bhargava
40 before the Chief Secretary was not a
305
 6. "A fact is said to be 'proved' when 40 standard for guidance of courts, for
after considering the matters before in the ultimate analysis it is the court
it, the Court either believes it to exist, which is called upon to exclude a
or considers its existence so probable confession by holding in the
5 that a prudent man ought, under the circumstances of a particular case
circumstances of the particular case, 45 that the confession was not made
to act upon the supposition that it voluntarily.
exists.
8. The threat, inducement or promise
7. Therefore, the test of proof is that must proceed from a person in
10 there is such a high degree of authority and it is a question of fact
probability that a prudent man would 50 in each case whether the person
act on the assumption that the thing concerned is a man of authority or
is true. But under Sec.. 24 of the not. What is more important is that
Evidence Act such a stringent rule is the mere existence of the threat,
15 waived but a lesser degree of inducement or promise is not
assurance is laid down as the 55 enough, but in the opinion of the
criterion. The standard of a prudent court the said threat, inducement or
man is not completely displaced, but promise shall be sufficient to cause a
the stringent rule of proof is relaxed. reasonable belief in the mind of
20 Even so, the laxity of proof permitted accused that by confessing he would
does not warrant a court's opinion 60 get an advantage or avoid any evil of
based on pure surmise. A prima facie a temporal nature in reference to the
opinion based on evidence and proceedings against him: while the
circumstances may be adopted as the opinion is that of the court, the
25 standard laid down. To put it in other criterion is the reasonable belief of
words, on the evidence and the 65 the accused. The section, therefore,
circumstances in a particular case it makes it clear that it is the duty of the
may appear to the court that there court to place itself in the position of
was a threat, inducement or promise, the accused and to form an opinion
30 though the said fact is not strictly as to the state of his mind in the
proved. This deviation from the strict 70 circumstances of a case. In the
standards, of proof has been present case it was found that certain
designedly accepted by the documents in the Chief Enginecr's
Legislature with a. view to exclude Office were tampered with and
35 forced or induced confessions which certain papers were substituted. The
sometimes are extorted and put in 75 appellant was the Superintendent in
when there is a lack of direct the Chief Engineer's Office. On April
evidence. It is not possible or 11, 1949, Shri P. N. Singhal,
advisable to lay down an, inflexible Officiating Chief Secretary to the

306
 Matsya Government, was making a statement by the said authority
departmental inquiry in respect of the reappears" to the court to be a threat
missing documents. The appellant, with reference to the charge against
among others, was questioned about the accused. As we have said, under
5 the said documents. The appellant 45 particular circumstances whether a
first made a statement, Ex. PL, in statement appears to the court to be a
which he stated that he neither asked threat or not is a question of fact. In
Bishan Swarup to bring file No. 127, this case the three lower courts
nor did he recollect any cause for concurrently held that in the
10 calling for that file on or about that 50 circumstances of the case the
date. As Shri Singhal was not able to statement did not appear to be a
find out the culprit, he expresser his threat within the meaning
opinion that if the whole truth did not of Sec..24 of The Evidence Act., but
come out, he would hand over the that was only a general statement
15 inquiry to the police. Thereafter, the 55 which any person who lost his
appellant made a statement, Ex. P.L. property and was not able to find out
1, wherein, in clear terms, he the culprit would make. It may be
admitted that about the middle of that such a statement under different
December 1948 Ram Kumar Ram circumstances may amount to a
20 took file No. 127- P. W./48 regarding 60 threat or it may also be that another
issue of licence to the Bharat court may take a different view even
Electrical and Industrial Corporation in the present circumstances of the
Ltd., Alwar, from his residence to case, but in exercising the powers
show it to his lawyers, and that he under Art.136 of the Constitution we
25 took the file more than once for that 65 are not prepared to differ from the
purpose. He also added that this concurrent finding given by the three
was a voluntary statement. Learned courts that in the circumstances of
counsel for the appellant argued that the present case that the said
the Chief Secretary gave the threat statement did not appear to them to
30 that, if the appellant did not disclose 70 be a threat.
the truth he would place the matter in
the hands of the police and that the 9. The second argument also has no
threat induced the appellant to make merits. A retracted confession may
the disclosure in the hope that he form the legal basis of a conviction if
35 would be excused by the authority the court is satisfied that it was true
concerned. There is no doubt that the 75 and was voluntarily made But it has
Chief Secretary is an authority within been held that a court shall not base a
the meaning of Sec..24 of the conviction on such a confession
Evidence Act, but the simple without corroboration. It is not a rule
40 question is whether the alleged of law, but is only rule of prudence.

307
 It cannot even be laid down as an 40 of Sec..378 of the Indian Penal Code.
inflexible rule of practice or The said section reads :
prudence that under no circumstances
such a conviction can be made "Whoever, intending to take
5 without corroboration, for a court dishonestly any movable property
may, in a particular case, be out of the possession of any person
convinced of the absolute truth of a 45 without that person's consent, moves
confession and prepared to act upon that property in order to such taking,
it without corroboration; but it may is said to commit theft.
10 be laid down as a general rule of
practice that it is unsafe to rely upon 11. The section may be dissected into
a confession, much less on a its component parts thus : a person
retracted confession, unless the court 50 will be guilty of the offence of theft,
is satisfied that the retracted (1) if he.- intends to cause a wrongful
15 confession is true and voluntarily gain or a wrongful loss by unlawful
made and has been corroborated in means of Property to which the
material particulars., The High Court person gaming is not legally entitled
having regard to the said principles 55 or to which the person losing is
looked for corroboration and found it legally entitled, as the case may be:
20 in the evidence of Bishan Swaroop,
P.W-7, and the entry in the Dak 12. see Sec..23 and Sec..24 of the
Book, Ex. PA. 4, and accepted the Indian Penal Code; (2) the said
confession in view of the said pieces intention to act dishonestly is in
of corroboration. The finding is one 60 respect of movable property; (3) the
25 of fact and there is no permissible said property shall be taken out of the
ground for disturbing it in this possession of another person without
appeal. his consent; and (4) he shall move
that property in order to such taking.
10. The last point is that on the facts 65 In the present case the record was in
found no case of theft has been made the possession of the Engineering
30 out. The facts found were that the Department under the control of the
appellant got the file between Chief Engineer. The appellant was
December 15 and 16, 1948, to his the Superintendent in that office; he
house, made it available to Ram 70 took the file out of the session of the
Kumar Ram and on December 16, said engineer. removed the file from
35 1948, returned it to the office. On office and handed it over to Ram
these facts it is contended that the Kumar Ram. But it is contended that
prosecution has not made out that the the said facts do not constitute the
appellant dishonestly took any 75 offence of theft for three reasons,
movable property within the meaning namely, (i) the Superintendent was in

308
 possession of the file and therefore 40 13. Wrongful loss is loss by unlawful
he could not have taken the file from means of property to which the
himself; person losing it is legally entitled. It
cannot be disputed that the appellant
(ii) there was no intention to take it unauthorisedly took the file from the
5 dishonestly as he had taken it only 45 office and handed it over to Ram
for the purpose of showing the Kumar Ram. He had, therefore,
documents to Ram Kumar Ram and unlawfully taken the file from the
returned it the next day to the office department, and for a short time he
and therefore he had not taken the deprived the Engineering Department
10 said file out of the possession of any 50 of the possession of the said file. The
person; and (iii) he did not intend to loss need not be caused by a
take it dishonestly, as he did not permanent deprivation of property
receive any wrongful gain or cause but may be caused even by
any wrongful loss to any other per- temporary dispossession, though the
15 son. We cannot agree that the 55 per-son taking it intended to restore it
appellant was in session of the file. sooner or later. A temporary period
The file was in the Secretariat of the of deprivation or dispossession of the
Department concerned, which was in property of another causes loss to the
charge of the Chief Engineer. The other. That a person- will act
20 appellant was only one of the officers 60 dishonestly if he temporarily
working in that, department and it dispossesses another of his property
cannot, therefore, be said that he was is made clear by illustrations (b) and
in legal posse- ssion of the file. Nor (1) of s.378 of the Indian penal code.
can we accept the argument that on They are:
25 the assumption that the Chief
Engineer was in possession of the 65 (b) A puts a bait for dogs in his
said file, the accused had not taken it pocket, and thus induces z's dog to
out of his possession. To commit follow it. Here, if A's intention be
theft one need not take movable dishonestly to take the dog out of Z's
30 property permanently out of the possession without Z's consent, A
possession of another with the 70 has committed theft as soon as Z's
intention not to return it to him. It dog has begun to follow A.
would satisfy the definition if he took (1). A takes an article belonging to Z
any movable property out of the out of Z's possession without Z's
35 possession of another person though consent, with the intention of
he intended to return it later on. We 75 keeping it until he obtains money
cannot also agree with learned from Z as a reward for its restoration.
counsel that there is no wrongful loss Here A takes dishonestly; A has
in the present case. therefore committed theft.
309
 14 It will be seen from the said
illustrations that a temporary removal
of a dog which might ultimately be
returned to the owner or the 35
5 temporary taking of an article with a
view to return it after receiving some
reward constitutes theft, indicating
thereby that temporary deprivation of
another person of his property causes
10 wrongful loss to him. We, therefore,
hold that the facts found in this case
clearly bring them within the four 40
comers of Sec..378 of the
Indian Penal Code and, therefore, the
15 courts have rightly held that the
appellant had committed the offence
of theft. No other Point was pressed
before us. In the result the appeal
fails and is dismissed.
45
20 Appeal dismissed.

50
25

30 55

310
 35. Judge of Gaya failed. When the
matter came to this Court, Verma J.,
Jadunandan Singh v emperor 1941
rejected the revisional application of
AIR 1941 Pat. 129
Jadunandan Singh and also, so far as
1. Narain Dusadh and Sheonadan 40 the question of sentence was
5 Singh, the gorait and gomasta concerned, that of Alakh.
respectively of a landlord, were
3. It has been contended on behalf of
returning after the inspection of some
Jadunandan Singh that no offence
fields when the two petitioners and
under Sec.. 384 has been brought
others came out of an ahar and
45 home to him. This contention is
10 assaulted them. The petitioner Alakh
rested on the definition of ‘extortion’
gave bhala blow to Narain on the
in Sec.. 383. It is clear that this
right leg, and then other people
definition makes it necessary for the
assaulted him with lathis. The
prosecution to prove that the victims
petitioner Jadunandan and others
50 Narain and Sheonandan were put in
15 then assaulted Sheonandan.
fear of injury to themselves or to
Jadunandan after this forcibly took
others, and further, were thereby
the thumb impressions of Narain on
dishonestly induced to deliver paper
one piece of blank paper, and of
containing their thumb impressions.
Sheonandan on three blank papers.
55 4. The prosecution story in the
20 2. On these findings the two
present case goes on further than that
petitioners and two others were
thumb impressions were “forcibly
convicted by the trying Magistrate,
taken” from them. The details of the
Jadunandan being sentenced under
forcible taking were apparently not
Sec..384, Penal Code, to six months
60 put in evidence. The trial Court
25 rigorous imprisonment and Alakh to
speaks of the wrists of the victims
four months rigorous imprisonment
being caught and of their thumb
under Sec..324. Jadunandan was also
impressions being then ‘taken.’
found guilty under Sec..323 but the
Cases frequently occur which turn on
Magistrate did not consider it
65 the difference between the giving and
30 necessary to pass any separate
the taking of thumb impressions.
sentence on him under that section.
Two other men were also convicted 5. In criminal Revn. No. 125 of
by the Magistrate under Sec.. 323 19311 heard by Sir Courtney-Terrell
and fined. An appeal which was C. J., and myself on 15th April 1931,
35 heard by the Additional Sessions 70 the victim was tied up on refusing to

311
 give his thumb impression on a piece compulsion, and I venture to agree
of paper. He then consented to put with the reasoning of my learned
his thumb impression on that piece of 40 brother Dhavle in Cri. Rev. No. 420
paper, and it was by that fear he was of 1930. The Assistant Government
5 found to have been induced to put his Advocate has drawn attention to 13
thumb impression on the paper. The PLT 5883 where the petitioners were
conviction under Sec..384 was convicted under Sec..347. It is said in
therefore upheld. This was contrasted 45 one part of the report that the victim
with the case which had come before was laid down on the floor and
10 me sitting singly in 1930, Criminal gagged and only allowed to go after
Revn. No. 420 of 1930, 2 decided on his thumb impressions were taken on
15th August 1930, where the finding several pieces of paper. Macpherson,
of fact that, helped by two others, the 50 J. upheld the conviction, after
petitioner took by force the thumb pointing out however that it had been
15 impressions of the victim-the man found as a fact that the petitioners
was thrown on the ground, his left intentionally put the victim in fear of
hand pulled out and the thumb put injury to himself and thereby
into a kajrauta and then impression of 55 dishonestly induced him to place his
that thumb taken on certain papers. I thumb impression upon certain
20 had held that in the circumstances pieces of paper. There is no such
there was no inducing the victim to finding in the present case. The lower
deliver the pieces of paper with his Courts only speak of the forcible
thumb impressions. As to this, the 60 taking of the victim’s thumb
late Chief Justice observed: If the impressions: and as this does not
25 facts had been that the complainant’s necessarily involve inducing the
thumb had been forcible seized by victim to deliver papers with his
one of the petitioners and had been thumb impressions (papers which
applied to the piece of paper 65 could no doubt be converted into
notwithstanding his struggles and valuable securities), I must hold that
30 protests, then I would agree that there the offence of extortion is not
is good ground for saying that the established. The learned advocate
offence committed, whatever it may suggested that in that event this may
be, was not the offence of extortion 70 be a case of robbery, but it has not
because State of the complainant been asserted or found that the papers
35 would not have been induced by the were taken from the victim’s
fear of injury but would have simply possession. It seems to me that on the
been the subject of actual physical findings the offence is no more than

312
 the use of criminal force or an assault
punishable under Sec.. 352, Penal
Code. Jadunandan Singh was also
convicted under Sec..323, but no
5 separate sentence was passed upon
him under that section. I do not
propose to interfere with that part of 40
the order of the lower Court, and as
regards his conviction under Sec..
10 384, Penal Code, which must be
replaced by a conviction under Sec..
352, Penal Code,
5. I sentence him to rigorous
imprisonment in default. As regards 45

15 the petitioner Alakh it had been

urged that he is a student. From the
record it appears that his age is 22,
and though record does not show that
he is a student, an attempt has been
20 made before me quite recently by
means of an affidavit and a certificate 50
to show that he is a student. I am not
sure that this is any mitigation of the
offence of causing hurt with a bhala,
25 but having regard to the nature of the
injury that he caused, it seems to me
that the ends of justice will be served
if the sentence passed upon him 55
under Sec..324, Penal Code, is
30 reduced to rigorous imprisonment for
three months.

60
35

313
 36. petitioner preferred Cri. R.C. 117/98
on the file of learned Additional
Sekar v. Arumugham (2000) Cr. L.
District Judge. Trichy and the
J. 1552 (Mad.)
revision was allowed and aggrieved
A. RAMAMURTHI, J. – 40 against this only, the Branch
5 1. Petitioner Sekar has filed these Manager, Bank of Madura filed the
revision petitions aggrieved against revision petition no. 658/99. The
the orders passed in Cri MPs 1530 petitions filed by the petitioner Sekar
and 2049 of 1999 respectively in missed by the learned trial Magistrate
C.C. 121 of 1999 on the file of 45 and aggrieved against this only, the
10 Learned Judicial Magistrate, other revision petitions are filed.
Manapparai, petitioner in Cri. R.C. 3. Learned counsel for the petitioner
658/99 has preferred the revision Sekar contended that the learned
aggrieved against the order passed by Magistrate erred in dismissing both
learned Additional District Judge. 50 petitions holding that the
15 Trichy Cri. R.C. No. 117/98 dated investigation is pending and as such,
26-2-1999. they cannot be called upon to
2. The case in brief for the disposal produce the vehicle into the Court.
of these revision petitions is as He is the owner of the lorry in
follows: Petitioner Sekar filed 55 dispute and the registration certificate
20 petition under S. 451 of the Code of book also stands only in his name.
Criminal Procedure seeking custody The respondent has not claimed any
of the lorry bearing registration no. rival ownership of the lorry and there
TN-45/D 5649 and also petition is no impediment for directing the
under Sec.. 91 of the Code of 60 respondent to produce the lorry and
25 Criminal Procedure for production of also to give custody. The learned
the said lorry before the Court. He Magistrate failed to appreciate that
filed a private complaint before the keeping the lorry in the custody is
learned Magistrate for an offence illegal.
under Sec.. 379 on the ground that 65 4. Learned counsel for the petitioner
30 the vehicle in question had been in Cri. R.C. 638/99 and the
taken away be the respondent. The respondent in the other two revision
complaint was dismissed under Sec.. petitions contended that the petitioner
203 of the Code of Criminal Sekar had availed a loan for a sum of
Procedure by the learned Magistrate 70 Rs. 4 lakhs during November 94
35 and aggrieved against this the from the Bank of Madura,

314
 cantonment Branch, Trichy towards evidence of the prosecution witnesses
purchase of Ashok Leyland Lorry. and on conducting an enquiry under
The petitioner executed a deed of 40 Sec.. 202 of Criminal Procedure
hypothecation dated 9- 11-1994 in Code inter alia holding that for the
5 favour of the bank and in terms of seizure of the said lorry by the bank
which had hypothecated the lorry in for the default in payment of
question as a security towards the instalments, the bank or its officers
due repayment of the amount 45 cannot be prosecuted for the offence
borrowed by him. The loan was of theft in the absence of mens rea.
10 repayable in 60 monthly instalments. The petitioner filed the revision Cri.
In terms of clause 14(3) of the deed R.C. No. 117/98 before the learned
of hypothecation, in the event of any Additional District Judge. Trichy and
default in the payment of the loan 50 the revision was allowed. Only the
instalments, the bank had the right to owner of the property can claim right
15 seize the said lorry. As per clause to seize the vehicle and the petitioner
15(b) of the said deed, the bank upon cannot claim the right. The bank
seizure of the vehicle was vested continues to be the owner of the lorry
with the right to sell the same and 55 and as such, the dismissal of the
appropriate the sale proceeds towards petitions is proper and correct.
20 the outstanding dues and payable of
5. The parties in all the revision
monthly instalments and as such, on
petitions are one and the same and as
30-7-1998 the bank seized the said
such, a common order is pronounced
lorry. Aggrieved against seizure he
60 in all these revision petitions. The
filed a suit in OS 230/96 against the
parties will be hereinafter referred to
25 bank in District Munsif Court,
as they are described in Cri. R.C. 585
Manaparai and the suit was
of 1999 to avoid confusion.
ultimately dismissed. The petitioner
also filed W.P. 17835/98 against the 6. It is admitted that the petitioner
bank and ultimately, in view of the 65 has availed the loan of Rs. 4 lakhs
30 pendency of the suit, he was not during November 1994 from the
permitted to invoke Article 226 of respondent towards purchase of the
the Constitution and the writ petition lorry in question. He also executed a
was also dismissed. After exhausting deed of hypothecation dated 9-11-
all these remedies, he filed C.C. 210 70 1994 in favour of the bank. The
35 of 1998 against the bank for alleged petitioner defaulted in payment of the
offence under Sec.. 379, IPC. The monthly instalments and because of
learned Magistrate on recording the this the respondent bank seized the

315
 lorry on 30-7- 1998. The petitioner lorry in case of default. Inspite of
filed a petition under Sec..91, Cr. these provisions, after the seizure of
P.C. to send for the property to the the lorry by the respondent, it
Court and he also filed another 40 appears that the petitioner filed a
5 petition under Sec.. 451, Cr. P.C. to private complaint before the learned
return the lorry in question to him Magistrate and the same was
since he claims that he is the owner dismissed under Sec.. 203, Cr. P.C.
of the property and the registration Aggrieved against this, the petitioner
certificate stands in his name. These 45 preferred revision before the learned
10 two petitions are dismissed by the Chief Judicial Magistrate, Trichy and
learned Magistrate. Learned counsel the appeal was allowed, directing the
for the petitioner mainly contended learned Magistrate to dispose of the
that the registration certificate book case in accordance with law.
stands in the name of the petitioner 50 Aggrieved against this order only,
15 and since he is the owner, the trial the respondent has filed the other
Court ought to have allowed both the revision petition 658/99.
petitions and as such, the dismissal is
8. It is necessary to state that the
not proper and correct.
petitioner filed a suit in O.S. 250/98
7. Learned counsel for the respondent 55 against the respondent bank on the
20 contended that the petitioner file of District Munsif Court,
hypothecated the lorry to the banks Manaparai for a declaration that he is
as a security and clause 14(e) of the the owner of the lorry and also filed
deed of hypothecation clearly I.A. No. 610/98 for a mandatory
indicates that in the event of any 60 injunction. The petition was
25 default in the payment of dismissed. Subsequently, he filed the
instalments, the bank had the right to suit in O.S. 187/98 on the file of Sub-
seize the lorry. Moreover, according Court, Kulithalai for damages and it
to clause 15(b) of the said deed of is pending. Not satisfied with that,
hypothecation, the bank upon seizure 65 the petitioner filed writ petition and
30 of the vehicle was vested with the the same was dismissed by the Court.
right to sell the same and appropriate When the respondent has been
the sale proceeds towards the empowered to seize the lorry under
outstanding dues and payable to it. It clause 14(e), it cannot be said that the
is therefore clear from clauses 14(e) 70 respondent has committed theft of
35 and 15(b) of the deed that the the lorry when the petitioner has
respondent is entitled to seize the committed default in payment of

316
 instalments, the bank has seized the 9. Cri. R.C. 585 and 586 of 1999:
lorry. The private complaint has been both revision petitions are dismissed.
filed against the respondent for Cri. R.C. 658/99, for the reasons
alleged offence under Sec.. 379, IPC mentioned above the revision is
5 only and the learned Chief Judicial 40 allowed and the order passed by the
Magistrate, Trichy had directed the learned Chief Judicial Magistrate,
learned Magistrate to dispose of the Trichy is set aside and the order
case. Taking into consideration the passed by the learned Magistrate,
fact that the respondent has seized Manaparai is restored. Consequently,
10 the lorry in accordance with the 45 Cri. M. Ps. 5101 and 5102 of 1999
power, I am of the view that it cannot are closed.
be construed as a theft committed by
the respondent and as such, the
dismissal of the complaint by the
15 learned Magistrate under Sec.. 203,
Cr. P.C. is proper and correct and the
order by the learned Chief Judicial 50
Magistrate is liable to be set aside.
Similarly the dismissal of the two
20 petitions filed by the petitioner under
Sec..s 91 and 451, Cr. P.C. is also
proper and correct for the simple
reason that in view of the default
committed by the petitioner, the 55
25 respondent had seized the lorry. Even
in the writ petition, the petitioner
filed W.M.P. wherein it is directed
that he can pay the arrears; but
however, the same was also not paid.
30 In the light of these facts only, the
learned Magistrate had dismissed
60
these two petitions filed by the
petitioner and there is no illegality or
infirmity in the orders passed by the
35 Courts below in these two petitions.

317
 37. which, they placed the accused under
arrest and it is alleged that the
State of Karnataka v.
ornaments were recovered form his
Basavegowda (1997) Cr L J 4386
possession under a Panchanama. On
(Kant.)
40 completing the investigation, the
5 F. SALDANHA AND accused was put up for trial, was
chargesheeted and the case was
H. N.NARAYAN, JJ. –
committed to the court of Sessions
1. The respondent-accused to this because, he stood charged with
appeal was the husband of the 45 offences punishable under Sec.. 307,
complainant Bhagyamma and it was IPC in so far as he had attempted to
10 alleged that about 10 days after their cause murder and secondly, he was
marriage, on 30-4-1987 , he took her also charged with an offence
to the Burudala Bore forest under the punishable under Sec.. 392, IPC in
pretext of going for the wedding of a 50 respect of the robbery of the
friend and that he threatened to kill jewellery in question. The learned
15 her unless she parted with all her trail judge, after assessing the
ornaments. Bhagyamma, finding no evidence before him, held that the
other option, removed all her sole testimony of Bhagyamma was
jewellery valued at around 55 insufficient to prove the prosecution
Rs.11,000/- and handed the same case beyond reasonable doubt
20 over the accused, who wrapped the principally because, the majority of
same in a handkerchief and put it in witnesses had turned hostile. In this
his pocket. Thereafter, the accused is background, the accused was
alleged to have assaulted her with a 60 acquitted and the State of Karnataka
big stone whereupon, Bhagyamma has preferred the present appeal
25 screamed. The accused continued to assailing the correctness of the order.
assault her with his fists and seeing
two other persons coming there, he 2. The learned S.P.P. has taken us
ran away. Bhagyamma was thereafter through the evidence of PW 2
taken to the town and ultimately to 65 Bhagyamma. He has pointed out that
30 the hospital. The hospital sent a the statement of Bhagyamma was
memo to the police and in the recorded in the hospital shortly after
meanwhile, her own relations were the incident took place and that there
informed and they came to the is no departure from the FIR and
hospital. The police took down the 70 other subsequent evidence before the
35 complaint of Bhagyamma after Court. The learned advocate has also

318
 pointed out that Bhagyamma has consequence has emerged in the
very clearly deposed to the fact that cross- examination and at the same
the accused was not treating her well 40 time, we need to record that her basic
and that he had told her on the day in evidence remains unshaken.
5 question that he was taking her to
3. The learned S.P.P. then relied on
attend the marriage of his friend at
only two other pieces of evidence,
Yarehally. On one pretext or the
the first of them being the scene of
other, he finally took her to the
45 offence Panchanama on which he
forest, whereupon he picked up a
relies for purposes of pointing out
10 stone and threatened to kill her if she
that the broken glass bangles that
did not give him all the golden
were found at that spot in the forest
ornaments. She has thereafter
fully support the version of
described the manner in which the
50 Bhagyamma as also the recovery of
accused assaulted her despite the fact
the stone. In addition to this, the
15 that she had parted with her jewellery
learned S.P.P. relies on the medical
and she points out that the accused
evidence because, he points out that
had used the stone in the assault and
the six injuries on the person of
had caused serious injuries to her
55 Bhagyamma fully and completely
chest. Even after she raised an alarm
support her evidence as the injuries
20 he continued to assault her and it is
correspond to the areas where she
only after two persons came running
was assaulted. The most serious of
there, that the accused ran away. She
the injuries was injury No.4 which
has also described as to how her
60 has caused a fracture of the rib. The
relations ultimately came to the
submission canvassed is that the
25 hospital and the police also came
medical evidence completely
there. She was retained in the
corroborates the oral evidence of
hospital for 7 days as an in patient.
Bhagyamma. Apart from these two
Bhagyamma had also taken the
65 pieces of evidence, the learned S.P.P.
police to the scene of offence and
has also sought to place reliance on
30 pointed out the stone M. O. I which
the evidence of recovery of the
was attached by the police. The
ornaments because the prosecution
broken glass bangles were found at
has established that after his arrest,
the scene of offence. She has given
70 the entire set of ornaments were
value of the ornaments at about
recovered from the pant pocket of the
35 Rs.10,500/-. Bhagyamma has been
accused and that when he produced
cross-examined at considerable
them, they were still wrapped in a
length, but nothing of any

319
 handkerchief. Learned advocate hostile to the accused at the time of
submitted that these ornaments the incident and that she would go to
happen to be a necklace, earnings the extent of fabricating serious
and items of personal jewellery 40 charges against him if these were not
5 which should normally be on the true. Having regard to the seriousness
person of Bhayamma and the fact of the matter and the fact that the
that they were found from the pocket accused not only threatened to kill
of the accused would fully establish Bhagyamma, but also took away all
that her version regarding the manner 45 her ornaments, could have been a
10 in which the accused took them from very valid and possible ground for
her is substantiated. her having wanted to thereafter put
an end to that marriage. We are
4. As against this position, the
therefore unable to discredit
respondent’s learned advocate has
50 Bhagyamma’s evidence purely for
placed strong reliance on the
this reason.
15 admission elicited form Bhagyamma
that she has subsequently obtained a 5. The respondent’s learned advocate
divorce from the accused and has thereafter placed reliance on the
also remarried. He submits that this medical evidence in support of his
is the clearest indication of the fact 55 plea that the injury to the chest could
20 that Bhagyamma was not happy with not have been caused by the stone. It
the marriage and desired to put an is true that the Doctor has initially
end to it which was why she has opined that such an injury would
framed the accused. As far as this have been unlikely having regard to
submission goes, we have carefully 60 the fact that the stone was of the
25 scrutinized the evidence and we find dimension of I0"x 8", but
that nothing has been brought on subsequently, the doctor himself has
record to indicate that Bhagyamma agreed that such an injury could be
was not happy with the marriage at caused by the stone in question. This
the time when it took place or that 65 in our opinion sets the matter at rest.
30 she had other intention or for that The learned advocate has also
matter, that she desired to marry submitted that if the accused was
some other man. In the absence of callous enough to threaten
any such material, merely because Bhagyamma with death and if he had
she has subsequently divorce the 70 taken her to a lonely place for this
35 accused and remarried, would not purpose, that there is no reason why
necessarily indicate that she was the accused would have not carried

320
 out his intention and that this itself would not hold him liable for an
shows that the story is fabricated. His offence of attempted murder. The
submission is that if the accused had learned advocate has submitted that
got hold of a large stone and intended 40 the weapon used and the type of
5 using it, that he would most certainly injuries caused are the two crucial
have done so and would not have factors while assessing questions as
given Bhgyamma an opportunity to to whether there was intention to
escape. As far as this argument is cause death and he is right in the
concerned, we take note of the fact 45 present instance when he submits
10 that Bhagyamma was a young adult that at the very highest, the accused
woman and even if the accused was could be held liable for the offence of
the stronger of the two, she would causing grievous hurt since injury no.
not have easily submitted to a fatal 4 indicated that there was fracture of
attack and she has in fact stated that 50 the rib though the other injuries are
15 on the first occasion when the stone relatively minor.
was aimed at her, that she was able to
7. The respondent’s learned advocate
avoid it and that she sustained only
then pointed out to us that the
minor injuries. Cumulatively,
majority of witnesses in this case
therefore, we are of the view that
55 have turned hostile. He submits that
20 merely because Bhagyamma escaped
this is not a mere co-incidence, but
with some injuries, that it cannot lead
that it very clearly reflects on the
to the conclusion that the accused did
type of investigation that has taken
not assault her at all on that day.
place and the high degree of
6. We however, do agree with the 60 fabrication exaggeration. Why
25 submission canvassed by the witnesses who have given full and
respondent’s learned advocate that complete statement to the police
even if Bhagyamma’s evidence were should thereafter turn hostile is not a
to be accepted, that the charge would matter of conjecture any longer
still not come within the ambit of 65 because, it is very clear that the only
30 Sec.. 307, IPC. Even though beneficiary of such a situation is the
Bhagyamma states that the accused accused and it would, therefore, be
threatened to kill her, we would impossible to rule out complicity on
necessarily have to strictly go by the part of the accused when witness
what he actually did and it is clear to 70 after witness turns hostile. The fact
35 us from the manner in which he that the majority of witnesses have
assaulted Bhagyamma, that the acts not supported the prosecution case is

321
 therefore, not a factor in favour of the clearly stated in her evidence that
accused, but one which militates these ornaments belong to her as they
heavily against him. had been made by her father for her
40 wedding. She also states that they
8. The respondent’s learned advocate
were in her custody and on her
5 then advanced the submission that
person and that the accused under
the accused was the husband of
threat, took the ornaments away from
Bhagyamma and that it is perfectly
her. If the custody of the ornaments
legitimate for him to keep the wife’s
45 has come to the accused under these
ornaments in his custody and that he
circumstances, then his possession
10 did so, that the custody does not
becomes clearly unlawful. We need
become unlawful. Learned advocate
to add here that ornaments and
submission proceeds on the
personal property belonging to a wife
assumption that the husband has
50 necessarily constitute her personal
every right to be found in possession
possessions and divesting a wife of
15 of a wife’s ornaments and that the
these against her wishes or without
recovery of the ornaments from him
her consent would clearly bring the
cannot be treated as a guilty
case within the ambit of a criminal
circumstance. We do not dispute the
55 offence. It is a misnomer to argue
fact that under normal situations, a
that irrespective of such situation,
20 wife may even entrust her ornaments
that the possession of the wife’s
to the husband for safe custody or a
personal ornaments by husband still
prudent or careful husband may, for
continues to be lawful. In our
reasons of safety, keep the ornaments
60 considered view, the extortion of the
with him or under his control and
ornaments from Bhagyamma under
25 such an arrangement could never
threat and the subsequent recovery of
lead to the inference that the husband
these ornaments from the custody of
was disentitled to retain the wife’s
the accused would clearly make him
ornaments and that it is a guilty
65 liable for an offence of extortion.
circumstance against him.
Though the learned S.P.P. submitted
30 Particularly in criminal cases, such
that even if the case did not qualify
facts are not to be considered in a
for a conviction under Sec.. 392,
vacuum, but must be looked at
I.P.C., that on these facts, it would
strictly in relation to the special
70 clearly come within the ambit of
situation that prevails in that
Sec.. 386, I.P.C because, the
35 particular case. We have taken note
ornaments were extorted under the
of the fact that Bhagyamma has very
threat of death, we would prefer not

322
 to accept the evidence of except for injury No.4 which has
Bhagyamma without a little dilution resulted in the fracture of the rib.
because, the F.I.R. indicates a There again, he points out that
slightly less serious situation. It 40 Bhagyamma was not seriously
5 would be more appropriate, injured and she was fit enough to
therefore, to record a conviction travel on a bicycle and then go to the
under Sec.. 384, I.P.C. hospital and that she has completely
recovered within a period of 7 days
9. As regards the rest of the evidence,
45 and he, therefore, submitted that the
we would prefer not to refer to it
offence at the highest would come
10 because, the majority of witnesses
under Sec..323, I.P.C We need to
have turned hostile and their
point out here that the assault in this
evidence is not of much
case cannot be brushed off as an
consequence. It is true that most of
50 insignificant one because, a stone
them have been cross-examined and
was used in a forest against a young
15 have come a full circle, but we are of
wife with the criminal intention
the view that Bhagyamma’s evidence
divesting her of her jewelry. Having
alone which finds considerable
regard to the fact that this incident
support from the other material
55 did not take place in the home and
which we have discussed above, is
that the accused had taken her to a
20 sufficient to establish the charge
forest under a false pretext, it is clear
against the accused.
that he had a criminal intention of
10. The learned S.P.P. submitted that either killing her or seriously injuring
the large stone used in this instance, 60 her, but that he ultimately did not
if used as a weapon of assault, was carry this out. Also, having regard to
25 capable of causing death and that it the medical evidence which lists the
could, therefore, come within the fracture of the rib as a serious injury,
ambit of a deadly weapon. He also we are of the clear view that this is a
submitted that injury no.4. which has 65 case which would qualify for a
resulted in the fracture of a rib is conviction under Sec.. 325, I.P.C.
30 sufficient to bring the case within the
11. On the question of sentence, the
ambit of Sec.. 326, I.P.C. The
learned S.P.P. has submitted that this
respondent’s learned advocate points
is one more of the heinous instances
out to us that the stone in question
70 where an (avaricious) unscrupulous
was a relatively small one and
husband has attacked a newly
35 secondly, that the other five injuries
married wife and that too with the
that have resulted are all very minor

323
 sole purpose of gain. He submits that only reduce the justice dispensation
irrespective of what ultimately system to a mockery of the law, but
happened, the facts clearly disclose 40 almost to a joke. It is very wrong on
that the accused wanted to the part of Criminal Courts, when
5 appropriate the jewellery and get rid offences of some seriousness are
of the wife and in this background, established, to award abnormally low
he submits that a deterrent sentence sentences, though we do appreciate
is called for. On the other hand, the 45 the fact that all relevant factors must
respondent’s learned advocate has be taken: into consideration while
10 prayed for utmost leniency because, computing the degree of sentences.
he submits that the ultimate injuries In this case, the only extenuating
were not of extreme seriousness and factors in favour of the accused are
he puts forward the plea that there is 50 that he was a young man; that he had
no material to indicate hostility on no criminal background; and
15 the part of the accused due to any furthermore that he was a rustic
other reason and that the Court must, person and would therefore qualify
therefore, accept the position that for some degree of leniency as he did
Bhagyamma either had some other 55 not have the benefit of either
liaison or that she was not interested education or acquiring a high degree
20 in the accused as a husband as she of enlightenment. It is for these
had an intention to marrying some reasons and also because nine years
other person and that in this have passed since the incident took
background, there was very strong 60 place that we are inclined to award a
provocation to the accused. We have relatively lenient sentence to the
25 discounted this submission, but we accused.
need to point out that even assuming
12. The order of acquittal is
that this was the situation, nothing
accordingly set aside. The accused is
could justify the act of the husband in
65 convicted in the first instance of the
taking her to a forest extorting her
offence punishable under Sec..325,
30 ornaments and then attempting to do
I.P.C and it is directed that he shall
away with her. Also, we have taken
undergo R.I for a period of two
note of the fact that in many
years. The accused is also convicted
instances, on all sorts of pleas for
70 of the offence punishable under
sympathy, abnormally lenient
Sec..384 I.P.C. and it is directed that
35 sentences are awarded by the Courts
he shall undergo R.I. for a period of
which have rightly been categorized
two years. The substantive sentences
as flea-bite punishments which not

324
 to run concurrently. The respondent
accused shall be entitled to the set-off
for the entire period that he has
already undergone. The trial Court
5 shall, if the accused has not
undergone the requisite sentence and
is on bail, take necessary steps to 35
ensure that he is placed under arrest
and consigned to prison. In that
10 event, the bail bond of the respondent
accused shall stand cancelled.
13. The appeal accordingly succeeds
and stand disposed of, the fees
payable to the learned advocate who 40

15 has represented the respondent

accused is fixed at Rs.l,000/-.

45
20

50
25

55
30

325
 38. Against the order of conviction and
sentence, the appellants have
Jaikrishnadas Manohardas Desai
appealed to this court with special
v. State of Bombay AIR 1960 SC
leave.
889
40 2. The facts which gave rise to the
5 J.C. SHAH, J. –
charge against the two appellants are
1. At a trial held with the aid of a briefly these: On 15-6-1948, the
common jury in Case No. 38 of the V Textile Commissioner invited tenders
Session 1955 before the Additional for dyeing Pugree Cloth. The Parikh
Sessions Judge, City Court, Greater 45 Dyeing and Printing Mills Ltd.,
10 Bombay, the two appellants were Bombay - hereinafter to be referred
convicted of offences under Sec.. 409 to as “the company” - of which the
read with Sec.. 34 of the Indian Penal first appellant was the Managing
Code. The Additional Sessions Judge Director and the second appellant
sentenced the first appellant to suffer 50 was a Director and technical expert,
15 rigorous imprisonment for five years submitted a tender which was
and the second appellant to suffer accepted on 27-7-1948, subject to
rigorous imprisonment for four years. certain general and special
In appeal, the High Court of Bombay conditions. Pursuant to the contract,
reviewed the evidence, because in the 55 2,51,05 ¾ yards of cloth were
20 view of the Court, the verdict of the supplied to the company for dyeing.
jury was vitiated on account of a The company failed to dye the cloth
misdirection on a matter of within the stipulated period and there
substantial importance, but held that was correspondence in that behalf
the conviction of the two appellants 60 between the company and the Textile
25 for the offence under Sec..409 read Commissioner. Approximately
with Sec..34 of the Indian Penal 1,11,000 yards out of the cloth were
Code was, on the evidence, not liable dyed and delivered to the Textile
to be set aside. The High Court Commissioner. On 25-3-1950, the
accordingly confirmed the conviction 65 company requested the Textile
30 of the two appellants but reduced the Commissioner to cancel the contract
sentence passed upon the first and by his letter dated 3-4-1950, the
appellant to rigorous imprisonment Textile Commissioner complied with
for three years and the sentence the request, and cancelled the
against the second appellant to 70 contract in respect of 96,128 yards.
35 rigorous imprisonment for one year. On 20-11-1950, the contract was

326
 cancelled by the Textile Bombay. Proceedings for winding up
Commissioner in respect of the the company were commenced in the
balance of cloth and the company High Court at Bombay. In the
was called upon to give an account 40 meantime, the mortgagee of the
5 without any further delay of the machinery and factory of the
balance undelivered and it was company had entered into possession
informed that it would be held under a covenant reserved in that
responsible for “material spoiled or behalf, of the premises of the factory
not accounted for”. On December 4, 45 of the company. 4. The Textile
10 1950, the company sent a statement Commissioner made attempts to
of account setting out the quantity of recover the cloth remaining
cloth actually delivered for dyeing, undelivered by the company. A letter
the quantity of cloth returned duly was posted by the Textile
dyed and the balance of cloth viz. 50 Commissioner on 16-4-1952, calling
15 1,32,160 yards remaining to be upon the company to deliver 51,756
delivered. Against the cloth admitted yards of cloth lying with it in
by the company remaining to be bleached condition to the Chief
delivered, it claimed a wastage Ordnance Officer, Ordnance Depot,
allowance of 2412 yards and 55 Sewri, but the letter was returned
20 admitted liability to deliver 1,29,748 undelivered. It was ultimately served
yards lying with it on Government with the help of the police on the
account. second appellant in October 1952.
Thereafter on 7-11-1952, another
3. It appears that about this time, the
60 letter was addressed to the company
company was in financial difficulties.
and the same was served on the
25 In December 1950, the first appellant
second appellant on 25-11-1952. By
left Bombay to take up the
this letter, the company was
management of a factory in
reminded that 1,35,726¾ yards of
Ahmedabad and the affairs of the
65 cloth were lying with it on account of
company were managed by one R.K.
the Government and the same had to
30 Patel. In June 1952, an application
be accounted for, and that the
for adjudicating the two appellants
instructions to deliver 51,756 yards
insolvents was filed in the Insolvency
to the Chief Ordnance Officer,
Court at Ahmedabad. An insolvency
70 Ordnance Depot, Sewri, had not been
notice was also taken out against the
attended to. The Textile
35 two appellants at the instance of
Commissioner called upon the
another creditor in the High Court at
company to send its representatives

327
 to “clarify the position” and to was found. A complaint was then
account for the material. After filed with the police charging the two
receiving this letter, the second appellants with criminal breach of
appellant attended at the office of the 40 trust in respect of 1,32,404½ yards of
5 Textile Commissioner and on 27-11- cloth belonging to the Government.
1952, wrote a letter stating that “the
6. There is no dispute that
main factors involved in not
approximately 1,30,000 yards out of
delivering the goods in finished state
the cloth entrusted to the company by
was that the material was very old”,
45 the Textile Commissioner for dyeing
10 was “dhobi bleached in different
has not been returned. By its letter
lots”, was “bleached under different
dated December 4, 1950, the
conditions and therefore unsuitable
company admitted liability to deliver
for vat colour dyeing in heavy
1,29,748 yards of cloth, but this cloth
shades”, that it varied in length,
50 has not been returned to the Textile
15 weight, and finish and had “lost
Commissioner in spite of repeated
affinity for vat colour dyeing”. It was
demands. That the appellants, as
also stated that the company had in
Directors of the company had
dyeing the basic material, suffered
dominion over that cloth was not
“huge losses” estimated at Rs 40,000.
55 questioned in the trial court. The plea
20 It was then stated: “We are,
that there were other Directors of the
therefore, however prepared to
company besides the appellants who
cooperate with the Government and
had dominion over the cloth has been
are willing to make good the
negatived by the High Court and in
government’s bare cost. Please let us
60 our judgment rightly. Direct evidence
25 know the detail and the actual
to establish misappropriation of the
amount to be deposited so that we
cloth over which the appellants had
may do so at an early date. We shall
dominion is undoubtedly lacking, but
thank you if we are given an
to establish a charge of criminal
appointment to discuss the matter as
65 breach of trust, the prosecution is not
30 regards the final amount with respect
obliged to prove the precise mode of
to the balance quantity of the basic
conversion, misappropriation or
material.”
misapplication by the accused of the
5. On December 29,1952, the property entrusted to him or over
premises of the company and the 70 which he has dominion. The
35 place of residence of the appellants principal ingredient of the offence
were raided, but no trace of the cloth being dishonest misappropriation or

328
 conversion which may not ordinarily Commissioner after December 4,
be a matter of direct proof, 1950, that the cloth had been eaten
entrustment of property and failure in up by white-ants and moths, and was
breach of an obligation to account for 40 therefore thrown away or otherwise
5 the property entrusted, if proved, destroyed. Nor was any evidence led
may in the light of other in support of the plea by the
circumstances, justifiably lead to an appellants.
inference of dishonest
8. In this court, counsel for the first
misappropriation or conversion.
45 appellant contended that failure to
10 Conviction of a person for the
return the cloth may give rise to a
offence of criminal breach of trust
civil liability to make good the loss
may not, in all cases, be founded
occasioned thereby, but in the
merely on his failure to account for
circumstances of the case, the first
the property entrusted to him, or over
50 appellant cannot be found guilty of
15 which he has dominion, even when a
the offence of criminal breach of
duty to account is imposed upon him,
trust. Counsel submitted that the first
but where he is unable to account or
appellant had left Bombay in 1950
renders an explanation for his failure
and had settled down in Ahmedabad
to account which is untrue, an
55 and was attending to a State of
20 inference of misappropriation with
Bombay factory in that town, that
dishonest intent may readily be
thereafter the first appellant was
made.
involved in insolvency proceedings
7. In this case, on a search of the and was unable to attend to the
factory on December 29, 1952, the 60 affairs of the company in Bombay,
25 cloth remaining to be delivered by and if, on account of the pre-
the company was not found. At the occupation of the first appellant at
trial, the appellants sought to explain Ahmedabad, he was unable to visit
the disappearance of the cloth from Bombay and the goods were lost, no
the factory premises where it was 65 criminal misappropriation can be
30 stored, on the plea that it was old and attributed to him. But the case
was eaten up by white-ants and pleaded by the appellant negatives
moths, and had been thrown away as this submission. The first appellant in
rubbish. This plea of the appellants his statement before the trial court
was not accepted by the High Court 70 admitted that he often went to
35 and we think rightly. No information Bombay even after he had migrated
was given at any time to the Textile to Ahmedabad and that he visited the

329
 mill premises and got the same of the letter dated 26-11-1952, from
opened by the Gurkha watchman and the Textile Commissioner and that he
he found that the heap of cloth lying 40 could not attend the office of that
in the mill was getting smaller every officer because he is attending to the
5 time he visited the mill and on insolvency proceedings and that he
inquiry, he was told by the watchman deputed the second appellant to
that every day one basketful of attend the office and to explain and
sweepings was thrown away. He also 45 discuss the position. He then stated,
stated that he was shown several “We had informed the Commissioner
10 places in the compound of the factory that the company was prepared to
where pits had been filled up with pay for the cloth remaining after
these sweepings, and that he found a deducting the amount claimed as
small heap lying by the side of the 50 damages”. The letter dated 27-11-
“Tulsi pipe gutter” and also in the 1952, was evidently written under
15 warehouses in the mill premises. It is the direction of the first appellant and
clear from this statement and other by that letter, liability to pay for the
evidence on the record that even after cloth after certain adjustments for
he migrated to Ahmedabad, the first 55 losses alleged to be suffered by the
appellant was frequently visiting the company in carrying out the contract
20 factory at Bombay. The evidence was admitted. By the letter dated
also discloses that meetings of December 4, 1950, liability to deliver
Directors were held from time to the cloth was admitted and by the
time, but the minutes of the 60 letter dated 27-11-1952, liability to
Directors’ meetings have not been pay compensation for the loss
25 produced. The books of account of occasioned to the Government was
the company evidencing affirmed. The appellants who were
disbursements to the Directors of liable to account for the cloth over
remuneration for attending the 65 which they had dominion have failed
meetings and the expenses for the to do so, and they have rendered a
30 alleged collection and throwing away false explanation for their failure to
of the sweepings have not been account. The High Court was of the
produced. It is admitted by the first opinion that this false defence
appellant that the letter dated 27-11- 70 viewed in the light of failure to
1952, was written by the second produce the books of account, the
35 appellant under his instructions. In stock register and the complete
his statement at the trial, the first absence of reference in the
appellant stated that he was informed correspondence with the Textile

330
 Commissioner about the cause of Indian Penal Code is “participation”
disappearance established in action. To establish joint
misappropriation with criminal responsibility for an offence, it must
intent. 40 of course be established that a
criminal act was done by several
5 9. Counsel for the first appellant
persons; the participation must be in
contended that probably the goods
doing the act, not merely in its
passed into the possession of the
planning. A common intention - a
mortgagees of the assets of the
45 meeting of minds - to commit an
company, but on this part of the
offence and participation in the
10 submission, no evidence was led in
commission of the offence in
the trial court. Counsel for the first
furtherance of that common intention
appellant, relying upon the
invite the application of Sec.. 34. But
observations in Shreekantiah
50 this participation need not in all cases
Ramayya Munipalli v. State of
be by physical presence. In offences
15 Bombay [(1955) 1 SCR 1177] also
involving physical violence,
contended that in any event, a charge
normally presence at the scene of
under Sec.. 409 read with Sec.. 34 of
offence of the offenders sought to be
the Indian Penal Code cannot be
55 rendered liable on the principle of
established against the first appellant
joint liability may be necessary, but
20 unless it is shown that at the time of
such is not the case in respect of
misappropriation of the goods, the
other offences where the offence
first appellant was physically present.
consists of diverse acts which may be
But the essence of liability under
60 done at different times and places. In
Sec.. 34 is to be found in the
Shreekantiah case, misappropriation
25 existence of a common intention
was committed by removing goods
animating the offenders leading to
from a Government depot and on the
the doing of a criminal act in
occasion of the removal of the goods,
furtherance of the common intention
65 the first accused was not present. It
and presence of the offender sought
was therefore doubtful whether he
30 to be rendered liable under Sec.. 34 is
had participated in the commission of
not, on the words of the statute, one
the offence, and this Court in those
of the conditions of its applicability.
circumstances held that participation
As explained by Lord Sumner in
70 by the first accused was not
Barendra Kumar Ghose v. King-
established. The observations in
35 Emperor [AIR 1925 PC 1, 7] the
Shreekantiah case in so far as they
leading feature of Sec.. 34 of the
deal with Sec.. 34 of the Indian Penal

331
 Code must, in our judgment, be read him that the principle of joint
in the light of the facts established liability is sought to be invoked.
and are not intended to lay down a Sec..34 does not create an offence; it
principle of universal application. 40 merely enunciates a principle of joint
liability for criminal acts done in
5 10. The High Court has found that
furtherance of the common intention
the two appellants were liable to
of the offenders. Conviction of an
account for the cloth over which they
accused person recorded, relying
had dominion and they failed to
45 upon the principle of joint liability, is
account for the same and therefore
therefore for the offence committed
10 each had committed the offence of
in furtherance of the common
criminal breach of trust. The High
intention and if the reasons for
Court observed: “In such a case, if
conviction establish that the accused
Accused 1 and 2 (Appellants 1 and 2)
50 was convicted for an offence
alone were concerned with the
committed in furtherance of the
15 receipt of the goods, if they were
common intention of himself and
dealing with the goods all the time, if
others, a reference in the order
they were receiving communications
recording conviction to Sec.. 34 of
from the Textile Commissioner’s
55 the Indian Penal Code may appear to
office and sending replies to them,
be a surplus age. The order of the
20 and if the part played by each of
High Court recording the conviction
them is apparent from the manner in
of the appellants for the offence
which they are shown to have dealt
under Sec.. 409 of the Indian Penal
with this contract, then it is a case of
60 Code is therefore not illegal.
two persons entrusted with the goods
25 and a breach of trust obviously being 12. It was submitted for the first
committed by both of them”. appellant that the sentence passed
against him was unduly severe, and
11. It was submitted that the High
that in any event, no distinction
Court erred in finding the appellants
65 should have been made between him
guilty of offences under Sec.. 409 of
and the second appellant in the
30 the Indian Penal Code when the
matter of sentence. It is evident on
charge framed against them was one
the findings accepted by us that
under Sec..409 read with Sec..34 of
property of considerable value has
the Indian Penal Code. A charge
70 been misappropriated by the first
framed against the accused person,
appellant. He was the Managing
35 referring to Sec..34 is but a
Director of the company and
convenient form of giving notice to

332
 primarily, he had dominion over the
property entrusted to the company.
30
The second appellant was, though a
Director, essentially a technician.
5 Having regard to these
circumstances, if the High Court has
made a distinction between the two
appellants, we ought not to interfere
with the sentence, which by itself
10 cannot be said to be excessive. 35

The appeal fails and is dismissed.

15 40

20 45

25 50

333
 39. charms and incantations which he
advertises in a number of newspapers
Akhil Kishore Ram v. Emperor AIR
in several provinces of India, and
1938 Crl.J 442, Pat 185
dispatches by value payable post to
ROWLAND, J. – 40 persons answering the
5 1. These two applications have been advertisements. Six of these
heard together, the facts in both transactions have been the subject
being similar. The petitioner was matter of the charges. Mr. Manuk at
brought before the Magistrate on six the outset asked us to bear in mind
charges which were tried in two 45 that what he called the materialist
10 batches of three each, and was attitude which regards spells and
convicted of cheating on all the charms as a fraudulent presence and
charges and sentenced in each trial to sale of them as a swindle, though
undergo rigorous imprisonment for widely held, is not shared by a large
18 months. These sentences have 50 body of opinion in the East
15 been directed to run concurrently. He particularly in India and among
was also sentenced at each trial to Hindus, where the efficacy of
pay a fine of Rs.500 in default to magical incantations is still relied on
suffer further rigorous imprisonment by many and thought to have a
for six months; the sentences of fine 55 religious basis; and he maintained
20 and of imprisonment in default are that there was nothing in the
cumulative. Appeals to the Sessions evidence to show that the petitioner
Judge of Patna were dismissed. The did not propound the spells or
main argument put forward on behalf incantations advertised by him in
of the petitioner is that assuming him 60 good faith and with a genuine and
25 to have done those things which the pious belief in their efficacy; he
Courts below hamitted no offence urged that a conviction should not be
and the second contention is that founded on the mere fact that the
even if the acts amounted to Court had not faith in the efficacy of
cheating, the sentences imposed are 65 the incantations. We may recognize
30 excessive. The facts are that the the existence of contrasting points of
petitioner Akhil Kishore Ram resides view, but I would express their
at Katri Sarai, police station Giriak, opposition differently. One outlook is
in Patna District, where in his own exemplified by words which the
name and under thirteen other aliases 70 dramatist Shakespeare puts in the
35 he carries on a business of selling mouth of one of his characters: It’s
not in mortals to command success.

334
 But we’ll do more, Sempronius, who answered this advertisement
we’ll deserve it. This is the mental received a printed paper headed
attitude of those who will spare no 40 “Gupta Mantra”. A formula follows,
effort to secure results by their own and then the instructions: Read the
5 endeavors and to whom, even if Mantra seven times and look at the
results fail them there is a satisfaction moon for fifteen minutes without
in having done all that man can do. shutting up your eyes even for a
There are those on the other hand 45 moment. Have a sound sleep with
who would like success to come to desired object in your heart after that
10 them but are averse from the effort of and you will succeed. You should
securing it by their own sustained take only the milk of cow, fruit and
exertions; it is not in them to deserve sweets of pure fresh cow’s milk
success but they hope by some 50 during the day and night time, you
device to command it. It is to the should bathe at night and make your
15 latter class that the advertisements of mind pure before you begin this
the petitioner are designed to appeal. process. No other person should be
The advertisement Ex.1 says: Gupta taken into confidence however dear
Mantra A reward of Rs. 100 The 55 and nearly related he may be to you.
objects which cannot be achieved by If you allow such things it will lose
20 spending lacs of rupees may be had its effects as it is so prepared that it
by repeating this Mantra seven times. can be used by only one man and that
There is no necessity of undergoing with strict secrecy. Sidh Mantra
any hardship to make it effective. It 60 Ashram, Katri Sarai, Gaya. The
is effective without any preparation. leaflets are printed in English,
25 She whom you want may be very Bengali, Hindi and Urdu; and it
hard hearted and proud, but she will would appear from the registers of
feel a longing for you and she will the post office that over 25,000
want to be forever with you when 65 clients paid good money for them.
you read this Mantra. This is a Mr. Manuk argues that the Mantras
30 “Vashi Karan Mantra”. It will make have not been proved to be
you fortunate, give you service and ineffective and sold with the
advancement, make you victorious in knowledge of their uselessness; and
litigation, and bring you profit in 70 therefore he says there was no
trade. A reward of Rs.100 if proved cheating. But that was not what the
35 fallible. Price, including postage etc., prosecution set out to prove. The
Rs. 270. Sidh Mantra Ashram, No. substance of the prosecution case and
37 P.O. Katri Sarai, Gaya. Those the findings of the Courts below was

335
 that whereas by the advertisement to show that the feat was not
clients were made to believe that impossible, and submitted that his
“there is no necessity of undergoing 40 client had been unfortunate in his
any hardship to make it effective” failure to secure the attendance of
5 and that “it is effective without more witnesses on the point though
preparation”, they were disappointed he was unable to say that accused
by finding on receipt of the leaflets was entitled as of right to more
that in order to work the miracle they 45 assistance than the Court gave him.
must stare unwinking at the moon for He also alluded to an offer by the
10 fifteen minutes; a feat which if not accused to make a demonstration of
impossible as some of the moon gazing in the presence of the
prosecution witnesses have trying Magistrate, which the latter
represented it to be, is at any rate 50 refused. As to that, the Magistrate
beyond the powers of ordinary was quite right. Sec..539 B of the
15 human beings except by long training Code which empowers the Court to
and preparation. I have pointed out make a local inspection does not
that the advertisement is specially contemplate a procedure by which
directed to those who are not content 55 the presiding officer would to all
to win success by patient preparation intents and purposes put himself in
20 and effort, and bids for their custom the position of a witness in the case.
by the assurance that no hardship or The Magistrate rightly said that the
preparation is needed. The victims accused could adduce no evidence of
concerned in the six transactions 60 any such test. The accused examined
which are before us have all said that as a witness a coal merchant who
25 had they known of the condition said that he used the Mantra, that he
precedent to the using of the Mantra, was able to gaze at the moon for
they would never have sent for it; fifteen minutes after some days’
And the Courts below have accepted 65 practice and that the capital of his
that evidence. Mr.Manuk argued that business has grown from Rs.300 to
30 readers of the advertisement must 1500. The feat of which he boasts
have expected that there would be does not appear to have been
some instructions for its use; that to witnessed by any impartial observer
gaze at the moon for fifteen minutes 70 and cannot be regarded as a well-
was an ordinary instruction; and that authenticated record; his business
35 a condition of this kind was no success also rests on his own word
breach of faith with them. He only and he is himself related to the
referred to defence evidence adduced accused and thus not a disinterested

336
 witness. The Courts below were fully desire to do good to himself. Para 2
entitled to refuse to rely on his of the instructions following the
evidence and to prefer the testimony 40 Mantra appears to be designed to
of prosecution witnesses who have secure the monopoly of his secret by
5 said that the condition attached to the the threat of the Mantra losing its
Mantra was impossible or at least effect if disclosed to others. The
beyond the power of ordinary reader is presumably expected to
persons. Mr. Manuk argued that the 45 forget that the vendor is disclosing it
petitioner was not bound to disclose to thousands. This clause should also
10 in his advertisement all the procedure minimize the danger of victims
that was required to be followed in discussing their experiences with one
order to obtain the benefit of the another and thus being moved to take
Mantra. That is true; but the 50 action against the vendor. Should
advertisement gave a definite there be any such discussion, the use
15 assurance that there was no necessity of the fourteen aliases might prevent
for either hardship or preparation and the victims from being fully aware
the condition referred to is contrary that they were dealing with the same
to that assurance, on which the 55 person. Then the advertisement is
witnesses said that they acted, and shrewdly drawn to disarm the
20 without which they would not have suspicion with which at first sight the
answered the advertisement. I have average newspaper reader is apt to
no doubt then that the offences regard magic, wizardry and
charged were committed and the 60 incantations. The reward of Rs. 100
petitioner has been rightly convicted. is placed in the forefront. No time is
25 There remains the question of lost in putting forward this assurance
sentence. Mr.Manuk contended that of genuineness in the headline and at
at the worst the accused had the foot again it is said “a reward of
committed a technical breach of the 65 Rs. 100 if proved fallible”.
law and that if the Mantra was in fact Prospective purchasers are left to
30 genuine and effective he might be, as hope that by seven times repeating
was argued in the Magistrate’s Court, the Mantra they will attain their
wanting to do good to the universe. object whatever it may be with the
Whether the intentions of the accused 70 assurance that in the event of failure
were beneficent or otherwise can they will get Rs.100 reward and in
35 only be inferred from the materials case they should still be so skeptical
before us, and such as they are I can as to wonder whether there is not a
find more indications in them of a catch somewhere, there is the added

337
 assurance that the Mantra is effective
without preparation and without the
necessity of undergoing any
hardship. If one may judge by the
5 internal evidence, these compositions
are the work of no ascetic or dreamer
but of a hard-headed businessman 40
with organizing capacity and a flair
for publicity. We know that he
10 advertises widely and employs a staff
of four clerks. The elements in
human nature to which the appeal is
made are not industry and patience
but laziness and greed. The business 45
15 is on large scale and the convictions
have been in respect of six out of an
unknown number of offences. These
are considerations against treating the
accused too lightly or imposing a
20 nominal sentence. The accused was
liable to be sentenced to seven years’
50
imprisonment of either description
for any one of the six offences of
which he has been convicted, and in
25 my opinion the sentences of
substantive imprisonment imposed,
namely eighteen months which will
amount to no more than consecutive
sentences of three months for each 55
30 offence are not excessive; nor are the
fines. I would dismiss the
applications and discharge the Rules.
Applications dismissed.

60
35

338
 40. is congenitally a dumb child. The
appellant assured the complainant
Sri Bhagwan S.S.V.V. Maharaj v.
that the little girl would be cured of
State of A.P. AIR 1999 SC 2332
her impairment through his divine
K.T. THOMAS, J. – 40 powers. He demanded a sum of Rs. 1
5 1. A godman is now in the dock. lakh as consideration to be paid in
One who was initiated by him as his instalments. The first instalment
devotee has later turned to be his bete demanded was Rs.10,000 which,
noire, and the godman is facing a after some bargaining, was fixed at
prosecution for the offence of 45 Rs.5000. The complainant paid that
10 cheating under Sec..420 of the Indian amount and later he paid a further
Penal Code. amount of Rs.1000 towards
incidental expenses. He waited
2. When he moved the High Court to eagerly for improvement of his dumb
quash the criminal proceedings 50 child till 1994 which was the time-
pending against him, the motion was limit indicated by the appellant for
15 dismissed as per the impugned order the girl to start speaking. As the child
against which the present appeal has remained the same, the complainant
been filed by special leave. began to entertain doubts. The
3. Facts, thus far developed, are 55 appellant postponed the time-limit
stated below: An FIR happened to be till August 1994 for the girl to
20 registered on the complaint lodged develop speech capacity. A little
by one Venkatakrishna Reddy with more amount of Rs.516 was
the Town Police Station, Nellore, collected for performance of a yagya.
containing the following allegations. 60 But unfortunately no such thing
The appellant (Sri Bhagwan brought about any change in the girl.
25 Samardha Sreepada Vallabha In the meanwhile, news of some
Venkata Vishwanandha Maharaj) other persons defrauded by the
who is a young man, son of a teacher appellant reached the ears of the
of Gummaluru Village (A.P.) 65 complainant as newspapers started
claimed to possess occult faculties publishing such other activities
30 and attracted a number of devotees. indulged in by the appellant. In one
He represented to have divine such publication it was mentioned
healing powers through his touches, that the appellant had mobilized
particularly of chronic diseases. The 70 more than a crore of rupees from
complainant approached him for different devotees. It was then that
35 healing his 15-year-old daughter who the complainant realized the fraud

339
 committed by the appellant, for which the impugned order was
according to the complainant. Hence passed.
a complaint was lodged with the
7. Learned counsel contended that no
police for cheating.
40 offence of cheating can be discerned
5 4. The police conducted investigation from the allegations, particularly in
and on 15-12-1994 laid final report view of the admitted fact that the
before the Magistrate concerned by complainant reposed faith only in the
referring the case as “mistake of fact” divine powers which the appellant
mainly on the ground that this is a 45 would only have offered to invoke
10 kind of religious belief “prevalent in through rituals and prayers.
India among devotees of God”.
8. If somebody offers his prayers to
According to the appellant, this was
God for healing the sick, there cannot
not a case of cheating or breach of
normally be any element of fraud.
trust. But the Magistrate was not
50 But if he represents to another that he
15 prepared to give accord to the said
has divine powers and either directly
report. On 2-8-1995 he ordered for
or indirectly makes that other person
“reinvestigation of the case”. 5.
believe that he has such divine
Pursuant to the said order, the police
powers, it is inducement referred to
reinvestigated and filed a report on
55 in Sec..415 IPC. Anybody who
20 15-9-1997 holding that the appellant
responds to such inducement
has committed the offence under
pursuant to it and gives the inducer
Sec..420 of IPC. The Magistrate took
money or any other article and does
cognizance of the offence on receipt
not get the desired result is a victim
of the said report and issued warrant
60 of the fraudulent representation. The
25 of arrest against the appellant.
court can in such a situation presume
6. The appellant moved the High that the offence of cheating falling
Court for quashing the proceedings within the ambit of Sec..420 IPC has
on two grounds. First is that the been committed. It is for the accused,
Magistrate has no jurisdiction to 65 in such a situation, to rebut the
30 order reinvestigation after receipt of presumption.
the first report of the police, without
9. So the contention that the
affording an opportunity to the
allegations do not disclose an offence
appellant. Second is that allegations
under Sec.. 420 IPC has to be
of the complainant would not
70 repelled and we are of the opinion
35 constitute an offence of cheating. But
the High Court dismissed the petition

340
 that the Magistrate has rightly taken 12. For the aforesaid reasons, we are
cognizance of the said offence. unable to interfere with the order
passed by the Magistrate.
10. Power of the police to conduct
further investigation, after laying Appeal is accordingly dismissed.
5 final report, is recognised under Sec..
40
173 (8) of the Code of Criminal
Procedure. Even after the court took
cognizance of any offence on the
strength of the police report first
10 submitted, it is open to the police to
conduct further investigation. This
has been so stated by this Court in
Ram Lal Narang v. State (Delhi 45
Admn.) [AIR 1979 SC 1791]. The
15 only rider provided by the aforesaid
decision is that it would be desirable
that the police should inform the
court and seek formal permission to
make further investigation.
50
20 11. In such a situation the power of
the court to direct the police to
conduct further investigation cannot
have any inhibition. There is nothing
in Sec..173 (8) to suggest that the
25 court is obliged to hear the accused
before any such direction is made.
Casting of any such obligation on the 55
court would only result in
encumbering the court with the
30 burden of searching for all the
potential accused to be afforded with
the opportunity of being heard. As
the law does not require it, we would
not burden the Magistrate with such 60
35 an obligation.

341
 41. 35 these Sec. to warrant Such an
interpretation as will become evident
State of Kerela v. Mathai Verghese
presently.
– (1986) 4 SCC 746
1. Judgment and Order rendered by
Thakkar, M.P. (J)
the Kerala High Court in Cr.R.P. 263
5 CRIMINAL APPELLATE 40 of 1975 on November 17, 1976,
JURISDICTION: Criminal Appeal giving rise to the present appeal by
No. 26 of From the Judgement and certificate of fitness under Article
Order dated 17.11.1976 of the Kerala 134(1)(c) of the Constitution of
High Court in Criminal Revision India.
10 Petition No. 263 of 1975.
45 Facts: The six respondents herein
Chettur Sankaran Nair and E.M.S. were charged with offences
Anam for the Appellant. Nemo for punishable under Sec. 120B, 489A,
the Respondents. 489B and Sec. 420 read with Sec.
The Judgment of the Court was 511 and 34 IPC. The prosecu- tion
15 delivered by THAKKAR, J. 50 case against them was that in
Counterfeiters all over the world furtherance of a conspir- acy entered
must be singing in ecstasy: "if there into by accused nos. 1 to 4 to forge
is heaven on earth, it is here, here, and coun- terfeit American dollar
here', for, according to the KeraLa notes of 20 dollar denomination, they
20 High Court1, Indian law does not 55 indulged in counterfeiting by printing
make counterfeiting of currency 2000 such notes. Respondents 1 and
notes of any country in the world, 2 were further alleged to have been
other than that of India, an offence. in possession of 148 forged currency
notes knowing the same to be forged,
The High Court has persuaded itself 60 with intent to use these forged notes
25 by a process of judicial activism in as genuine. The respondents were
reverse gear, that making of such committed by the Magistrate to stand
counterfeit notes is not an offence their trial before the Sessions Court,
under Sec. 489A of the Indian an for offences, under Sec. 120-B, 487A
Penal Code (I.P.C.) and that having 65 and 489C read with Sec. 511 and 34
30 in posses- sion such counterfeit IPC. It was contended by the
currency notes is not an offence respondents-accused before the
under Sec. 489C of the I.P.C. Such a Sessions Court that a charge under
view has been taken even though Sec. 489A and 489C of the IPC
there is nothing in the language of 70 could be lawfully levelled only in the

342
 case of counterfeiting of'Indian' requires to be X-rayed at the outset.
currency notes and not in the case of The concerned provisions may
counterfeiting of 'foreign' currency 40 therefore be screened:-
notes. The conten- tion was upheld
"489A. Whoever counterfeits, or
5 by the Sessions Court at the
knowingly performs any part of the
threshold of the trial and the accused
process of counter- feiting, any
were discharged. Aggrieved by the
currency note or ank note, shall be
order of the Sessions Court
45 punished with (imprisonment for
discharging the respondents, the
life), or with imprisonment of either
10 petitioner (State of Kerala) filed a
description for a term which may
Revision Petition before the High
extend to ten years, and shall be
Court of Kerala. The High Court by
liable to fine.
its order under appeal confirmed the
order of discharge rendered by the 50 Explanation:-- For the purposes of
15 Sessions Court holding that "in the this Sec. and of Sec. 489B, 4(489C,
absence of an expla- nation similar to 489D and 489E) the expression
that in the case of bank notes; Sec. "bank note" means a promissory note
489A and the Sec. that follow which or engagement for the payment of
relate to counter- feiting of currency 55 money to bearer on demand issued
20 notes do not apply to cases of by any person carrying on the
counter- feiting of dollar bills." The business of banking in any part of the
petitioner thereupon filed an world, or issued by or under the
application under Article 134 (1)(c) authority of any State or Sovereign
of the Constitution of India for leave 60 Power, and intended to be used as
25 to appeal to the Supreme Court. By equivalent to, or as a substitute for
its order under appeal, the High money.
Court certified it as a fit case for 3. Subs. by Act 26 of 1955, Sec. 117
appeal to the Supreme Court as "the and sch. for "transportation for life"
case involves considera- bly 65 (w. e.f. 1-1- 1956).
30 important questions of law as to
whether counterfeit American dollar 4. Subs. by Act 35 of 1950, Sec. 3
notes will fall within the purview of and Sch.II for "489C and 489D".
Sec- tions 489A and 489C of the "489C. Whoever has in his
Indian Penal Code." That is how the possession any forged or counterfeit
35 matter has come up before this 70 currency-note or bank- note,
Court.Relevant provisions:--The knowing or having reason to believe
anatomy of the relevant provi- sions the same to be forged or counterfeit
343
 and intending to use the same as The legislature could have, but has
genuine or that it may be used as not, employed the expression 'Indian
genuine, shall be punished with im- currency
prisonment of either description for a
1. A promise, obligation or other
5 term which may extend to seven
40 condition that binds. (See Collins
years, or with fine, or with both."
Dictionary) note'. If the legislative
Analysis: An analysis of Sec. 489A intent was to restrict the parame- ters
reveals that:-- of prohibition to 'Indian currency'
only, the legisla- ture could have said
(i) counterfeiting 'any' currency note
45 so unhesitatingly. The' expression
10 or bank-note is an offence;
'currency note' is large enough in its
(ii) knowingly performing any part of amplitude to cover the currency notes
the process of counterfeiting any of 'any' country. When the legislature
currency note or bank-note is also an does not speak of currency notes of
offence; and 50 India the Court inter- preting the
15 (iii) the prohibition against coun- relevant provision of law cannot
terfeiting or performing such process substitute the expression 'Indian
applies to currency notes as also to currency note' in place of the
bank-notes as defined by the expression 'currency note' as has
explanation to Sec. 489A. And 55 been done by the High Court. The
20 inasmuch as the aforesaid expression High Court cannot do so for, the
interalia means any engagement1 for Court can merely interpret the Sec.; it
the pay- ment of money to the bearer cannot re-write, recast or redesign the
issued by or under the authority of Sec.. In interpreting the provision the
any State or Sovereign power 60 exercise undertaken by the Court is
25 provided it is intended to be used as to make explicit the intention of the
equiva- lent to or substitute for legislature which enacted the
money the prohibi- tion also extends legislation. In is not for the Court to
to counterfeiting etc. of currency reframe the legislation for the very
notes of any other sovereign power. 65 good reason that the powers to
'legislate' have not been conferred on
30 Outcome: This analysis reveals that the Court. When the expression
the legislative embargo against 'currency note' is interpreted to mean
counterfeiting envelops and takes 'Indian currency note', the width of
within its sweep 'currency notes' of 70 the expression is being narrowed
all countries. The embargo is not re- down or cut down. Apart from the
35 stricted to 'Indian' currency notes.
344
 fact that the Court does not possess piece of paper which will bring him
any such power, what is the purpose nothing in return, it being a
to be achieved by doing so? A Court 40 counterfeit or a forged currency note.
can make a purposeful interpretation Would the legislature in its wisdom
5 so as to 'effectuate'the intention of and anxiety to protect the unwary
the legislature and not a purposeless citizens extend immunity from being
one in order to 'defeat- 'the intention cheated in relation to Indian currency
of the legislators wholly or in part. 45 notes but show total unconcern in
When the Court (apparently in the regard to their being cheated in
10 course of an exercise in inter- respect of currency notes issued by
pretation) shrinks the content of the any foreign State or sovereign
expression 'currency note; to make it power?. In the modern age a tourist
referable to only 'Indian currency 50 from a foreign country may bring
note', it is defeating the intention of from his own country into India
15 the legislature partly inasmuch as the currency to the extent permissible
Court makes it lawful to counterfeit under the law in India. So also he
notes other than Indian currency may obtain foreign currency in
notes. The manifest purpose of the 55 exchange of Indian currency whilst
provision is that the citizens should in India provided he does so to the
20 be protected from being deceived or extent permissi- ble by the Foreign
cheated. The citizens deal with and Exchange Regulation Act,
trans- act business with each other
1. Currency n. 1. a metal or paper
through the medium of currency1,
60 medium of exchange that is in
(which expression includes coins as
current use. (Collins English
25 also paper currency that is to say
Dictionary).
currency notes). It is inconceivable
why the legislature should be anxious 1973(1) and operates through an
to protect citizens from being authorised person (2) known as
deceived or cheated only in respect 65 money changer(3). Would it be
30 of Indian currency notes and not in reasonable to assume that the
respect of currency notes issued by legislature was totally oblivious of
other sovereign powers. The purpose the need to protect them from being
of the legislation appears to be to deceived and defrauded? It would be
ensure that a person accepting a 70 unwise to do so in the face, of the
35 currency note is given a genuine internal evidence which pro- vides a
currency which can be exchanged for clue to the legislative anxiety on this
goods or services and not a worthless score. In fact the framers of the Code

345
 were so anxious to protect the 1. Sec. 13(1): The. Central
general public from fraudulant acts Government may, by notifica- tion in
of counterfeiters that not only have the official Gazette, order that subject
they defined the word "counterfeit" 40 to such exemption, if any, as may be
5 in very wide terms in the Indian specified in the notification, no
Penal Code, but they have also person shall except with the general
prescribed a rule of evidence in or special permis- sion of the Reserve
Explanation 2 so as to draw an Bank and on payment of the fee, if
adverse presumption against the 45 any, prescribed, bring or send into
10 maker of the counterfeit article, as is India any gold or silver or any
evident from the definition of the foreign exchange or any Indian
term "Counterfeit" read with the currency. Explanation: For the
Explanations in Sec. 28 of the Indian purposes of this sub-Sec., the
Penal Code(1). 50 bringing or sending into any port or
place in India of any such article as
15 What is more, the expression 'bank
aforesaid intended to be taken out of
note' employed in Sec. 489A to 489E
India without being removed from
of I.P.C. takes within its sweep an
the ship or conveyance in which it is
engagement for the payment of
55 being carried shall nonetheless be
money issued by or under the
deemed to be a bringing, or, as the
20 authority of any State or Sovereign
case any gold or silver or any foreign
power as is evident from the analysis
exchange or any Indian currency. (2)
of the Sec. made hereinabove. And it
No person shall, except with the
would therefore cover a Dollar Bill
60 general or special permission of the
or Dollar Note as well. A dollar bill
Reserve Bank or the written
25 issued by the Sovereign Government
permission of a person authorised in
of United States of America would
this behalf by the Reserve Bank, take
ipsofacto be covered by the expres-
or send out of India any gold,
sion 'bank-note'. And as revealed by
65 jewellery or precious stones or Indian
the analysis made earlier, the
currency or foreign exchange other
30 prohibition would apply to the
than foreign exchange obtained by
counterfeiting of a Bank-note or
him from an autho- rised dealer or
being in possession of a counterfeit
from a money-changer.
Bank-note as well. It would,
therefore, in any case, be an offence 70 2. Sec. 6(1). The Reserve Bank may,
35 to counterfeit a dollar bill or to be in on an application made to it in this
possession of counterfeit dollar bill.

346
 behalf, anthorise any person to deal Provided that no such authorisation
in for- eign exchange. shall be revoked on the ground
35 specified in clause (ii) unless the
(2) An authorisation under this Sec.
authorised dealer has been given a
shall be in writing and-
reasonable opportunity for making a
5 (i) may authorise dealings in all representation in the matter.
foreign currencies or may be
(4) An authorised dealer shall, in all
restricted to authorising dealings in
40 his dealings in foreign exchange and
specified foreign currencies only;
in the exercise and discharge of the
(ii) may authorise transactions of all powers and of the functions
10 descriptions in foreign currencies or delegated to him under Sec. 74,
may be restricted to authorising comply with such general or special
specified transactions only; 45 directions or in- structions as the
(iii) may be granted to be effective Reserve Bank may, from time to
for a specified period, or within time, think fit to give, and except
15 specified amounts; with the previous permission of the
Reserve Bank, an authorised dealer
(iv) may be granted subject to such 50 shall not engage in any transaction
conditions as may be specified involving any foreign exchange
therein. which is not in conformity with the
(3) Any authorisation granted under terms of his authorisation under this
20 sub-Sec. (1) may be revoked by the Sec..
Reserve Bank at any time if the 55 (5) An authorised dealer shall, before
Reserve Bank is satisfied that-- undertaking any transaction in
(foot note contd.) foreign exchange on behalf of any
person, require that person to make
(i) it is in the public interest to do so; such declarations and to give such
25 or 60 information as will reasonably satisfy
(ii) the authorised dealer has-not him that the transaction will not
complied with the conditions subject involve, and is not designed for the
to which the authorisation was purpose of, any contravention or
granted or has contravened any of the evasion of the provisions of this Act
30 provisions of this Act or of any rule, 65 or of any rule, notification, direction
notification, direction or order made or order made thereunder, and where
thereunder:. the said person refuses to comply
with any such requirement or makes

347
 only unsatisfactory compliance (3) Any authorisation granted under
therewith, the authorised dealer shall sub-Sec. (1) may be revoked by the
refuse to undertake the transaction 35 Reserve Bank at any time if the
and shall, if he has reason to believe Reserve Bank is satisfied that: -
5 that any such contravention or
(i) it is in the public interest to do so;
evasion as aforesaid is contemplated
or
by the person, report the matter to the
Reserve Bank. (ii) the money-changer has not
40 complied with the condi- tions
3. Sec. 7:(1) The Reserve Bank may,
subject to which the authorisation
10 on an application made to it in this
was granted or has contravened any
behalf, authorise any person to deal
of the provisions of this Act or of any
in for- eign currency.
rule, notification, direction or order
(2) An authorisation under this Sec. 45 made thereunder. Provided that no
shall be in writing and- such authorisation shall be revoked
on the ground specified in clause (ii)
15 (i) may authorise dealings in all
unless the money-changer has been
foreign currencies or may be
given a reasonable opportunity for
restricted to authorising dealings in
50 making a representa- tion in the
specified currencies only;
matter.
(ii) may authorise transactions of all
(4) The provisions of sub-Sec. (4)
20 descriptions in foreign currencies or
and (5)'of Sec. 6 shall, in so far as
may be restricted to authorising
they are applicable, apply in relation
specified transactions only;
55 to a money-changer as they apply in
(iii) may be granted with respect to a relation to an autho- rised dealer, (5)
particular place where alone the Explanation--In this Sec., "foreign
25 money-changer shall carry on his money" means foreign currency in
business; the form of notes, coins or travellers'
(iv) may be granted to be effective 60 cheques and "dealing" means
for a specified period, or within purchasing foreign currency in the.
specified amounts; form of notes, coins or traveller's
cheques or selling foreign currency
30 (v) may be granted subject to such in the form of notes or coins.
conditions as may be specified
therein. 65 Why then construe the expression
'currency note' as being applicable
only to an Indian currency note and

348
 not to a foreign currency note like a currency note' is to misread the
dollar bill? There is neither any expression by doing vio- lence both
compulsion of law nor of logic for 40 to the letter and spirit thereof
indulging in the exercise undertaken unmindful of the fact that the former
5 by the High Court which in the expression in its plentitude covers the
opening part of the judgment has currency notes issued by any and
been adverted to as 'judicial activism every country of the world whereas
in reverse gear'. Nor was any ideal to 45 the letter is applicable to only one of
be attain by doing so. Why then the coun- tries in the world. The
10 stretch the unstretchable? It appears High Court also fell in error in being
that the High Court lost its way influenced by the definition of
whilst groping in the dark by a currency notes em- bodied in the
possibly misconceived and ill- 50 Indian Paper Currency Act (Act XX
founded argument1 built on the of 1822). The High Court has
15 circumstance that whilst the overlooked the obvious fact that the
explanation to Sec. 489A in terms definition contained 1 in Sec. 2 of the
refers to a bank note issued 'under the said Act is only for the purposes of
au- thority of any State or sovereign 55 that particular Act and it cannot be
power' similar explanation is not imported into Sec. 489A to 489E of
20 added in the context of the the Indian Penal Code, as has been
expression 'currency note'. The High done by the High Court. The High
Court overlooked the fact that there Court was thus wholly wrong in
was neither any occasion, nor any 60 exerting itself unnecessarily and
reason, nor any need, for doing so. bending backwards in order to hold
25 For, the expression 'currency note' as that Sec. 489A to 489E are not
it stood was wide and pervasive
1. "28. A person is said to
enough to embrace the currency
"counterfeit" who causes one think to
notes issued by India as also currency
65 resemble another thing, intending by
notes issued by any other country in
means of that resemblance to practise
30 the world. There was therefore no
deception, or knowing it to be likely
need to add a similar explanation. It
that deception will thereby be
would have been futile to amplify
practised. Explanation 1 --It is not
that the expression 'currency note'
70 essential to counterfeit- ing that the
which on a plain reading covers 'all'
imitation should be exact.
35 currency notes meant what it said. To
read the expression 'any currency Explanation 2--When a person causes
note' to mean and refer to 'Indian one thing to resemble another thing,

349
 and the resemblance is such that a go back to the trail court for
person might be deceived thereby, it proceeding further in accordance
shall be presumed, until the contrary with law in the light of the observa-
is proved, that the person so causing 40 tions made hereinabove. Appeal is
5 the one thing to resemble the other accordingly allowed to this extent.
thing intended by means of that
M.L.A.
resemblance to practise deception or
Appeal
knew it to be likely that deception
would thereby be practised." allowed.
10 1. Says the High Court: "The 45 1. Says the High Court:--
omission of an explanation in Sec. "The expression 'currency notes' is
489A for the expression "currency Sec. 489A to 489BE should naturally
note" similar to the one for 'hank refer to currency notes as defined in
note' thus assumes importance. The Act XX of 1822
15 expression could refer only to the
currency notes issued by the Govern- 50
ment of India."
applicable to currency notes other
than Indian currency notes. And in
20 holding that counterfeiting of or
possessing of counterfeit dollar bills
or dollar notes is not an of- fence
under the Indian law, thereby issuing 55

a carte blanche to the counterfeiters

25 of the world to establish their head-
quarters within the State of Kerala
with a view to carry on their
activities with impunity under the
umbrella unwitting- ly opened for
30 them by the judgment of the High 60
Court. The view taken by the High
Court is thus thoroughly
unsustainable. The judgment and
order of discharge rendered by the
35 High Court are therefore reversed
and set aside. The matter will not to

350
 42. 35 contending that the same is violative
of Articles 14 and 21 of the
P. Rathinam v. Union of India –
Constitution and the prayer is to
AIR 1994 SC 1844
declare the Sec. void. The additional
Hansaria B.L. (J) prayer in Writ Petition (Crl.) No. 419
5 The Judgment of the Court was 40 of 1987 is to quash the proceedings
delivered dy B. L. HANSARIA,J.-- initiated against the petitioner
Gandhiji once observed: "Death is (Nagbhusan) under Sec. 309.
our friend, the trust of friends. He 4. The judiciary of this country had
delivers us from agony. I do not want occasion to deal with the aforesaid
10 to die of a creeping paralyis of my 45 aspect; and we have three reported
faculties-- a defeated man". decisions of the three High Courts of
The English poet William Ernest the country, namely, Delhi, Bombay
Henley wrote: "I am the master of and Andhra Pradesh on the aforesaid
my fate, I am the captain of my question. There is also an unreported
15 soul." 50 decision of the Delhi High Court. It
would be appropriate and profitable
2. Despite the above, Hamlet's to note at the threshold what the
dilemma of "to be or not to be" faces aforesaid three High Courts have
many a soul in times of distress, held in this regard before we apply
agony and suffering, when the 55 our mind to the issue at hand.
20 question asked is "to die or not to
die". If the decision be to die and the 5. The first in point of time is the
same is implemented to its decision of a Division Bench of
fructification resulting in death, that Delhi High Court in State v. Sanjay
is the end of the matter. The dead is Kumar Bhatial in which the Court
25 relieved of the agony, pain and 60 was seized with the question as to
suffering and no evil consequences whether the investigation of the case
known to our law follow. But if the under Sec. 309 should be allowed to
person concerned be unfortunate to continue beyond the period fixed by
survive, the attempt to commit Sec. 368 CRPC. Some loud thinking
30 suicide may see him behind bars, as 65 was done by the Bench on the
the same is punishable under Sec. rationale of Sec. 309. Sachar, J., as
309 of our Penal Code. he then was, observed for the Bench:

3. The two petitions at hand have "It is ironic that Sec. 309 IPC still
assailed the validity of Sec. 309 by continues to be on our Penal Code. ...

351
 Strange paradox that in the age of Maharashtra2 in which the Bench
votaries of Euthanasia, suicide speaking through Sawant, J., as he
should be criminally punishable. then was, on being approached for
Instead of the society hanging its 40 quashing a prosecution launched
5 head in shame that there should be against the petitioner under Sec. 309
such social strains that a young man of the Penal Code on the ground of
(the hope of tomorrow) should be unconstitutionality of the Sec., took
driven to suicide compounds its the view and that the Sec. was ultra
inadequacy by treating the boy as a 45 vires being violative of Articles 14
10 criminal. Instead of sending the and 21 and was therefore struck
young boy to psychiatric clinic it down. We would note the reasons for
gleefully sends him to mingle with the view taken later.
criminals.... The continuance of Sec.
7. Close on the heels was the
309 IPC is an anachronism unworthy
50 decision of a Division Bench of
15 of a human society like ours. Medical
Andhra Pradesh High Court in
clinics for such social misfits
Chenna Jagadeeswar v. State of
certainly but police and prisons
A.p.3 in which on the High Court
never. The very idea is revolting.
being approached against the
This concept seeks to meet the
55 conviction of the appellants under
20 challenge of social strains of modem
Sec. 309, inter alia, on the ground of
urban and competitive economy by
the Sec. being violative of Articles
ruthless suppression of mere
14 and 21 of the Constitution, the
symptoms this attempt can only
Bench held that the Sec. was valid as
result in failure. Need is for humane,
60 it did not offend any of these articles.
25 civilised and socially oriented
The Bombay view was dissented to;
outlook and penology.... No wonder
the reasons of which also we shall
so long as society refuses to face this
advert to later.
reality its coercive machinery will 1
1985 Cri LJ 931 :(1985) 2 DMC 153 8. The unreported decision of the
30 (Del) invoke the provision like Sec. 65 Delhi High Court has been noted in
309 IPC which has no justification to the articles of Shri B.B. Pande,
continue to remain on the statute Reader in Law, University of Delhi,
book." as published in Islamic and
Comparative Law Quarterly [Vol.
6. Soon came the Division Bench
70 VII (1), March 1987 at pp. 112 to
35 decision of Bombay High Court in
120] and of Shri Faizan Mustafa,
Maruti Shripati Dubal v. State of
Lecturer, Department of Law,

352
 Aligarh Muslim University [(1993) 1 10. Before dealing with the points
SCJ Journal Sec. at pp. 36 to 42]. raised in these writings, it would be
That decision was rendered in a suo worthwhile to note that Shri V.S.
motu proceeding titled as Court on 40 Deshpande after his retirement as
5 its own Motion v. Yogesh Sharma4. Chief Justice of Delhi High Court
The decision was rendered by had expressed his view on this
Sachar, C.J. The Court once again question in his 1 1987 Cri LJ 743
pointed out the futility of creating (1986) 88 Bom LR 589: 1986 Mah
criminal liability in suicide cases, but 45 LJ 913 (Bom) 3 1988 Cri LJ 549
10 instead of striking down the Sec. or (1987) 2 Andh LJ 263: 1987 APLJ
declaring it invalid, what the learned (Cri) 110 (AP) 4 Registered as Cri.
Chief Justice did was to quash all the Revision No. 230 of 1985 article
119 proceedings pending in the trial titled "To be or not to be" [(1984) 3
courts on the ground that dragging of 50 SCC (Journal) at pp. 10 to 15] Shri
15 the prosecutions for years when the Deshpande, after referring to what
victims have had enough of misery had been held by this Court
and the accused also belonged to regarding the scope of Article 21,
poorer Sec. which added further took the view that if Sec. 309 is
insult to the injury, would be abuse 55 restricted in its application to
20 of the process of the court. Being of attempts to commit suicide which are
this view, each of the accused was cowardly and which are unworthy,
directed to be acquitted. then only this Sec. would be in
consonance with Article 21, because,
9. Striking down of the Sec. by the
60 if a person having had no duties to
Bombay High Court has come to be
perform to himself or to others when
25 criticised by the aforesaid Shri Pande
he is terminally ill, decides to end his
and Shri Mustafa, so also by Shri
life and relieve himself from the pain
D.C. Pande, Research Professor,
of living and the others from the
Indian Law Institute, in his article on
65 burden of looking after him,
"Criminal Law" [of Annual Survey
prosecution of such a person would
30 of Indian Law, Vol. 23 (1987) at pp.
be adding insult to injury and it was
260 to 270 of published by the Indian
asked : "Should a Court construe Sec.
Law Institute]. In the 'Editorial Note'
309 IPC to apply to such cases?"
titled 'Taking One's Life' [(1986-87)
91 CWN (Journal Sec.) at pp. 37 to 70 11. Sometime afterwards appeared an
35 40] the Bombay decision received article of Justice R.A. Jahagirdar of
some criticism. Bombay High Court in the Illustrated

353
 Weekly of India (September 29, be made on principle and is
1985) in which the learned Judge conceptually permissible.
took the view that Sec. 309 was
13. Though what we propose to
unconstitutional for four reasons: (1)
40 decide in these cases would,
5 neither academicians nor jurists are
therefore, relate to the offence of
agreed on what constitutes suicide,
attempted suicide, it is nonetheless
much less attempted suicide; (2)
required to be stated that euthanasia
mens rea, without which no offence
is not much unrelated to the act of
can be sustained, is not clearly
45 committing suicide inasmuch as
10 discernible in such acts; (3)
wherever passive euthanasia has been
temporary insanity is the ultimate
held to be permissible under the law,
reason of such acts which is a valid
one of the requirements insisted upon
defence even in homicides; and (4)
is consent of the patient or of his
individuals driven to suicide require
50 relations in case the patient be not in
15 psychiatric care.
a position to give voluntary consent.
12. Apart from the aforesaid judicial The relationship between suicide and
and legal thinking on the subject euthanasia has come to be
relating to justification and highlighted in a decision of the
permissibility of punishing a man for 55 Supreme Court of Nevada (one of the
20 attempting to commit suicide, there States of United States of America)
are proponents of the view that in Mckay v. Bergstedt5 where a
euthanasia (mercykilling) should be patient filed a petition to the court for
permitted by law. We do not propose permitting disconnection of his
to refer to the thinking on this 60 respirator. The district court, on the
25 subject, principally because the same facts of the case, granted permission.
is beyond the scope of the present The State appealed to the Supreme
petitions and also because in Court of Nevada which, after
euthanasia a third person is either balancing the interest of the patient
actively or passively involved about 65 against the relevant State interest,
30 whom it may be said that he aids or affirmed the district court's judgment.
abets the killing of another person. The court took the view that the
We propose to make a distinction desire of the patient for withdrawal
between an attempt of a person to of his respirator did not tantamount
take his life and action of some 70 to suicide the same was rather an
35 others to bring to an end the life of a exercise of his constitutional and
third person. Such a distinction can common law right to discontinue

354
 unwanted medical treatment. This negative right not to live. In this
was the view taken by the majority. connection it has been first stated that
One of the Judges expressed a the fundamental rights are to be read
dissenting view. 40 together as held in R. C. Cooper v.
Union of India6. Mention was then
5 14. A comment has been made on the
made of freedom of speech and
aforesaid decision [at pp. 829 to 838
expression, as to which it was
of Suffolk University Law Review,
observed that the same includes
Vol. 25 (1991)] by stating that the
45 freedom not to speak and to remain
distinction made by the majority
silent. Similarly, about the freedom
10 between suicide and euthanasia
of business and occupation, it was
because of differences in motive and
stated that it includes freedom not to
mental attitude, is not tenable and the
do business. (2) Notice was then
commentator referred to the
50 taken of the various causes which
dissenting opinion in which it was
lead people to commit suicide. These
15 observed that the patient was in fact
being mental diseases and
requesting the court to sanction
imbalances, unbearable physical
affirmative act which was entirely
ailments, affliction by socially-
consistent with the court's definition
55 dreaded diseases, decrepit physical
of suicide, inasmuch as the majority
condition disabling the person from
20 had defined suicide as "an act or
taking normal care of his body and
instance of taking one's own life
performing the normal chores, the
voluntarily and intentionally; the
loss of all senses or of desire for the
deliberate and intentional destruction
60 pleasures of any of the senses,
of his own life by a person of years
extremely cruel or unbearable
25 of discretion and of sound mind; one
conditions of life making it painful to
that commits or attempts his self-
live, a sense of shame or disgrace or
murder". (This was indeed the
a need to defend one's honour or a
definition given in Webster's Third
65 sheer loss of interest in life or
New International Dictionary, 1968.)
disenchantment with it, or a sense of
30 15. We may now note the reasons fulfilment of the purpose for which
given by the Bombay High Court in one was born with nothing more left
Shripati case2 for striking down the to do or to be achieved and a genuine
Sec. as violation of Article 21. These 70 urge to quit the world at the proper
reasons are basically three: (1) moment. (3) The Bench thereafter
35 Article 21 has conferred a positive stated that in our country different
right to live which carries with it the forms of suicide are known. These

355
 being: Johars (mass suicides or self- even guidelines, made Sec. 309
immolation) of ladies from the royal arbitrary as per the learned Judges.
houses to avoid being dishonoured Another reason given was that Sec.
by the enemies; Sati (self-immolation 40 309 treats all attempts to commit
5 by the widow on the burning pyre of suicide by the same measure without
her deceased husband); Samadhi referring to the circumstances in
(termination of one's life by self- which attempts are made.
restraint on breathing);
17. The first of the aforesaid reasons
Prayopaveshan (starving unto death);
45 is not sound, according to us,because
10 and Atmarpana (self-sacrifice). It
whatever differences there may be as
was also observed that the saints and
to what constitutes suicide,there is no
savants, social, political and religious
doubt that suicide is intentional
leaders have immolated themselves
taking of one's life, as stated at p.
in the past and do so even today by
50 1521 of Encyclopaedia of Crime and
15 one method or the other and society
Justice, Vol. IV, 1983 Edn. Of
has not only 6 (1970) 2 SCC 298 :
course, there still exists difference
AIR 1970 SC 1318 not disapproved
among suicide researchers as to what
of the practice but has eulogised and
constitutes suicidal behaviour, for
commemorated the practitioners. It
55 example, whether narcotic addiction,
20 may be pointed out that the Bench
chronic alcoholism, heavy cigarette
made a distinction between "suicide"
smoking, reckless driving, other risk-
and "mercy- killing"; so also,
taking behaviours are suicidal or not.
between suicide and aiding or
It may also be that different methods
abetting the same.
60 are adopted for committing suicide,
25 16. The Bombay High Court held for example, use of firearms,
Sec. 309 as violation of Article 14 poisoning especially by drugs,
also mainly because of two reasons. overdoses, hanging, inhalation of
First, which act or acts in series of gas. Even so, suicide is capable of a
acts will constitute attempt to 65 broad definition, as has been given in
30 suicide, where to draw the line, is not the aforesaid Webster's Dictionary.
known some attempts may be serious Further, on a prosecution being
while others non-serious. It was launched it is always open to an
stated that in fact philosophers, accused to take the plea that his act
moralists and sociologists were not 70 did not constitute suicide whereupon
35 agreed upon what constituted suicide. the court would decide this aspect
The want of plausible definition or also.

356
 18. Insofar as treating of different they were. The broad points of their
attempts to commit suicide by the objection/criticism were these: (1)
same measure is concerned, the same suicide is an act against religion; (2)
also cannot be regarded as violative 40 it is immoral; (3) it produces adverse
5 of Article 14, inasmuch as the nature, sociological effects; (4) it is against
gravity and extent of attempt may be public policy (This has also been the
taken care of by tailoring the main argument of the counsel of
sentence appropriately. It is worth Union of India before us.); (5) it
pointing out that Sec. 309 has only 45 damages monopolistic power of the
10 provided the maximum sentence State, as State alone can take life; and
which is up to one year. It provides (6) it would encourage aiding and
for imposition of fine only as a abetting of suicide and may even lead
punishment. It is this aspect which to 'constitutional cannibalism'.
weighed with the Division Bench of
50 21. We shall in due course see
15 Andhra Pradesh High Court in its
whether the aforesaid objections
aforesaid decision to disagree with
raised against the Bombay judgment
the Bombay view by stating that in
are valid. Concerned as we are with
certain cases even Probation of
the broad contention that Sec. 309 is
Offenders Act can be pressed into
55 violative of Article 21, we shall first
20 service, whose Sec. 12 enables the
inform ourselves as to the content
court to ensure that no stigma or
and reach of this article and then
disqualification is attached to such a
answer in a general way as to
person. (See para 32 of the
whether a person residing in India
judgment.)
60 has a right to die. Sec. 309 being a
25 19. We agree with the view taken by part of our enacted law, we would
the Andhra Pradesh High Court as desire to know what object a law
regards Sec. 309 qua Article 14. But seeks to achieve. This Sec. having
the Bombay Bench itself was more made attempt to commit suicide an
involved with Article 21 and 65 offence, we shall ask the question as
30 violation of it by Sec. 309, the to why is a particular act treated as
reasons whereof have been noted. crime and what acts are so treated.
Whether these are sound and tenable, We shall then apply our mind to the
would be our real consideration. purposeful query as to how a crime
70 can be prevented. Being seized with
20. The Bombay High Court's
the crime of 'attempted suicide', we
35 decision led some thinkers to express
shall apprise ourselves as to why
their own views. We have noted who

357
 suicides are committed and how can commit suicide is presently a crime
they be really prevented. We would only in two other countries of the
also desire to know what type of globe they being United Kingdom
persons have been committing 40 and United States of America. The
5 suicides and what had been their reasons for our selecting these two
motivations. We would then view the countries shall be indicated when we
act of committing suicide in the shall advert to our 'global view'
background of our accepted social query. It may only be stated here that
ethos. Having done so, we shall take 45 we are opening the window only a
10 up the points of criticism noted little, as, the little air that would pass
above one by one and express our through the little aperture would be
views on the same. enough, in our view, to enable us to
have broad knowledge of global view
22. Having known that the Law
50 on the subject under consideration.
Commission of India had in its 42nd
15 Report of 1971 recommended 24. The aforesaid mental odyssey
deletion of Sec. 309, we shall put on would take us through a long path
record as to why was this before we would reach our
recommendation made and how was destination, our conclusion. Finale
the same viewed by the Central 55 would, however, come after we have
20 Government; and what steps, if any, answered or known the following:
were taken by it to implement the
(1) Has Article 21 any positive
recommendation. What is the present
content or is it merely negative in its
thinking of the Union of India shall
reach?
also be taken note of.
60 (2) Has a person residing in India a
25 23. Finally, we shall open our mental
right to die?
window a little to allow breeze to
come from other parts of the world, (3) Why is a law enacted? What
inter alia, because Gurudev object(s) it seeks to achieve?
(Rabindranath Tagore, the Nobel (4) Why is a particular act
30 Laureate) wanted us to do so. 65 treated as crime/What acts are so
Globalisation has, in any case, been treated
accepted by us in some other fields
of our activities. We have stated (5) How can crimes be prevented?
opening of this window "a little" (6) Why is suicide committed?
35 because we propose to confine
ourselves to know whether attempt to

358
 (7) Who commits suicide? (1) Has Article 21 any positive
Secularisation of suicide content or is it merely negative in its
35 reach?
(8) How suicide-prone persons
should be dealt with? 26. This question is no longer res
integra inasmuch as a Constitution
5 (9) Is suicide a non-religious act?
Bench of this Court in Unnikrishnan
(10) Is suicide immoral? v. State of A.p.7 [in which right to
(11) Does suicide produce adverse 40 receive education up to the primary
sociological effects? stage has been held to be a call of
Article 1] has virtually answered this
(12) Is suicide against public policy? question. This would be apparent
10 (13) Does commission of suicide from what was stated by Mohan, J. in
damage the monopolistic power of 45 paragraph 19 and by Jeevan Reddy,
the State to take life? J. in paragraph 170. In paragraph 30,
Mohan, J. has mentioned about the
(14) Is apprehension of rights which have been held to be
'constitutional cannibalism' justified? covered under Article 21. These
15 (15) Recommendation of the Law 50 being:
Commission of India and follow-up (1) The right to go abroad. Satwant
steps taken, if any. Singh Sawhney v. D. Ramarathnam
(16) Global view. What is the legal APO, New Delhi8. .
position in other leading countries of (2) The right to privacy. Gobind v.
20 the world regarding the matter at 55 State of M.P. In this case reliance
hand? was placed on the American decision
25. The aforesaid questions, which in Griswold v. Connecticut..
have been framed keeping in mind (3) The right against solitary
the information we thought necessary confinement. Sunil Batra v. Delhi
25 to enable us to decide the important 60 Admn. 11
matter at hand to our satisfaction,
have been listed as above keeping in (4) The right against bar fetters.
view their comparative importance Charles Shobraj v. Supdt., Central
for our purpose the most important Jail12.
30 being he first and so on; and we (5) The right to legal aid. M. H.
propose to answer them in the same 65 Hoskot v. State of Maharashtra' 3.
sequence.

359
 (6) The right to speedy trial. 35 in Sunil Batra v. Delhi Admn.22
Hussainara Khatoon(1) v. Home (SCC paras 55 and 226 : AIR paras
Secretary, State of Bihar14. 56 and 226), to which further leaves
were added in Board of Trustees of
(7) The right against handcuffing.
the Port of Bombay v. Dilipkumar
5 Prem Shankar Shukla v. Delhi
40 Raghavendranath Nadkami23 (SCC
Admn.15
para 13 : AIR para
(8) The right against delayed
13); Vikram Deo Singh Tomar v.
execution. T. V. Vatheeswaran v.
State of Bihar24 (SCC para 5 : AIR
State of T. N. 16
para 5); and Ramsharan
10 (9) The right against custodial 45 Autyanuprasi v. Union of India25
violence. Sheela Barse v. State of (SCC para 13 : AIR para 13). In
Maharashtra these decisions it was held that the
(10) The right against public word 11 (1978) 4 SCC 494, 545:
hanging. A.G. of India v. Lachma 1979 SCC (Cri) 155 12 (1978) 4
15 Devil'. 50 SCC 104: 1978 SCC (Cri) 542:
(1979) 1 SCR 512 13 (1978) 3 SCC
(11) Doctor's assistance. Paramanand 544: 1978 SCC (Cri) 468: (1979) 1
Katra v. Union of India19. SCR 192 14 (1980) 1 SCC 81 : 1980
(12) Shelter. Shantistar Builders v. SCC (Cri) 23 : (1979) 3 SCR 169 15
N.K. Totame2O. 55 (1980) 3 SCC 526: 1980 SCC (Cri)
815 :(1980) 3 SCR 855 16 (1983) 2
20 27. The aforesaid is enough to state SCC 68 : 1983 SCC (Cri) 342: AIR
that Article 21 has enough of positive 1983 SC 361 17 (1983) 2 SCC 96:
content in it. As to why the rights 1983 SCC (Cri) 353 18 1989 Supp
mentioned above have been held 60 (1) SCC 264: 1989 SCC (Cri) 413 :
covered by Article 21 need not be AIR 1986 SC 19 (1989) 4 SCC 286:
25 gone into, except stating that the 1989 SCC (Cri) 721 20 (1990) 1
originating idea in this regard is the SCC 520 21 (1877) 94 US 1 13 : 24
view expressed by Field, J. in Munn L Ed 77 (1877) 22 (1978) 4 SCC
v. IllinoiS21 in which it was held that 65 494: 1979 SCC (Cri) 155: AIR 1978
the term 'life' (as appearing in the 5th SC 1675 23 (1983) 1 SCC 124: 1983
30 and 14th amendments to the United SCC (L&S) 61 : AIR 1983 SC 109
States Constitution) means 24 1988 Supp SCC 734: 1989 SCC
something more than 'mere animal (Cri) 66: AIR 1988 SC 1782 25 1989
existence'. This view was accepted 70 Supp (1) SCC 251 : AIR 1989 SC
by a Constitution Bench of this Court
360
 549 'life' in Article 21 means right to held at New Delhi in 1986. This is
live with human dignity and the same what the learned authors stated about
does not merely connote continued life in their article:
drudgery. It takes within its fold
40 Life is not mere living but living in
5 "some of the finer graces of human
health. Health is not the absence of
civilization, which makes life worth
illness but a glowing vitality the
living", and that the expanded
feeling of wholeness with a capacity
concept of life would mean the
for continuous intellectual and
"tradition, culture and heritage" of
45 spiritual growth. Physical, social,
10 the person concerned.
spiritual and psychological well-
28. It would be relevant to note the being are intrinsically interwoven
decision in State of H.P. v. Umed into the fabric of life. According to
Ram Sharma26. It was observed Indian philosophy that which is born
there in paragraph 11 that the right to 50 must die. Death is the only certain
15 life embraces not only physical thing in life."
existence but the quality of life as
30. May it be said that in C.E.S.C.
understood in its richness and
Ltd. v. Subhash Chandra Bose27 it
fullness by the ambit of the
has been opined by Ramaswamy, J.
Constitution; and for residents of
55 (who is, of course, a minority Judge)
20 hilly areas access to road was held to
that physical and mental health have
be access to life itself, and so
to be treated as integral part of right
necessity of road communication in a
to life, because without good health
reasonable condition was held to be a
the civil and political rights assured
part of constitutional imperatives,
60 by our Constitution cannot be
25 because of which the direction given
enjoyed. (2) Has a person residing in
by the Himachal Pradesh High Court
India right to die?
to build road in the hilly areas to
enable its residents to earn livelihood 31. If a person has a right to live,
was upheld. What can be more question is whether he has right not
30 positive and kicking? 65 to live. The Bombay High Court
stated in paragraph 10 of its
29. We may also refer to the article
judgment that as all the fundamental
of Dr M. Indira and Dr Alka Dhal
rights are to be read together, as held
under the caption "Meaning of Life,
in R.C. Cooper v. Union of India6
Suffering and Death" as read in the
70 what is true of one fundamental right
35 International Conference on Health
is also true of another fundamental
Policy, Ethics and Human Values

361
 right. It was then stated that it is not, rights as all other rights are derivable
and cannot be, seriously disputed that from the right to live.
fundamental rights have their
33. The aforesaid criticism is only
positive as well as negative aspects.
partially correct inasmuch as though
5 For example, freedom of speech and
40 the negative aspect may not be
expression includes freedom not to
inferable on the analogy of the rights
speak. Similarly, the freedom of
conferred by different clauses of
association and movement includes
Article 19, one may refuse to live, if
freedom not to join any association
his life be not according to the person
10 or move anywhere. So too, freedom
45 concerned worth living or if the
of business includes freedom not to
richness and fullness of life were not
do business. It was, therefore, stated
to demand living further. One may
that 26 (1986) 2 SCC 68: AIR 1986
rightly think that having achieved all
SC 847 27 (1992) 1 SCC 441 :1992
worldly pleasures or happiness, he
15 SCC (L&S) 313 logically it must
50 has something to achieve beyond this
follow that the right to live will
life. This desire for communion with
include right not to live, i.e., right to
God may very rightly lead even a
die or to terminate one's life.
very healthy mind to think that he
32. Two of the abovenamed critics of would forego his right to live and
20 the Bombay judgment have stated 55 would rather choose not to live. In
that the aforesaid analogy is any case, a person cannot be forced
"misplaced", which could have arisen to enjoy right to life to his detriment,
on account of superficial comparison disadvantage or disliking.
between the freedoms, ignoring the
34. From what has been stated above,
25 inherent difference between one
60 it may not be understood that
fundamental right and the other. It
according to us the right
has been argued that the negative
encompassed or conferred by Article
aspect of the right to live would
21 can be waived. Need for this
mean the end or extinction of the
observation has been felt because it
30 positive aspect, and so, it is not the
65 has been held by a Constitution
suspension as such of the right as is
Bench in Olga Tellis v. Bombay
in the case of 'silence' or 'non-
Municipal Corpn.28 that a
association' and 'no movement'. It has
fundamental right cannot be waived.
also been stated that the right to life
A perusal of that judgment, however,
35 stands on different footing from other
70 shows that it dealt more with the
question of estoppel by conduct

362
 about which it can be said that the would be enough if what has been
same is a facet of waiver. In the stated by Shri M. Ruthnaswamy in
present cases, we are, however, not Chapters 5 and 6 of his book
on the question of estoppel but of not Legislation: Principles and Practice
5 taking advantage of the right 40 (1st Edn., 1974) (the Chapter
conferred by Article 21. headings being "Principles of
Legislation in History" and
35. Keeping in view all the above,
"Contemporary Principles of
we state that right to live of which
Legislation"), is noted. The learned
Article 21 speaks of can be said to
45 author has within a short compass
10 bring in its trail the right not to live a
brought home the different principles
forced life.
which had held sway in different
36. In this context, reference may be parts of the world at different points
made to what Alan A. Stone, while of time. Ruthnaswamy starts in
serving as Professor of Law and 50 Chapter 5 by saying that it is from
15 Psychiatry in Harvard University the time of the Renaissance and the
stated in his 1987 Jonas Robitscher Reformation when men, as a result of
Memorial Lecture in Law and these great revolutionary movements
Psychiatry, under the caption "The broke away from rule of custom and
Right to Die : New Problems for Law 55 tradition, that legislation began its
20 and Medicine and Psychiatry". (This career as an instrument of social and
lecture has been printed at pp. 627 to political, and even religious, change.
643 of Emory Law Journal, Vol. 37, The readers are then informed as to
1988). One of the basic theories of what Richard Hooker (15541600)
the lecture of Professor Stone was 60 thought on the question of law
25 that right to die inevitably leads to Which, according to him, has to be
the right to commit suicide. 28 influenced by experience and
(1985) 3 SCC 545 : AIR 1986 SC supported by reason.
180 (3) Why is a law enacted? What
38. The next important thinker of
object(s) it seeks to serve?
65 England after Hooker was the
30 37. Sec. 309 being a part of our famous Francis Bacon (1561-1626).
enacted law, let it be known as to In his Essays (the most popular of his
why a law is framed or is required to works) we find his views on
be framed. To put it differently, what legislators and legislation. Bacon
objects are sought to be achieved by 70 stood out for progress and utility and
35 framing laws. For our purpose it was of the view that it was not good

363
 to try experiments in legislation. As 40. Readers then find themselves in
against Bacon there was Sir Edward Italy and they are acquainted with
Coke, who was a defender of the Beccaria (1739-1794), who through
rights of the Parliament. Mention is 40 his pamphlet under the title Delict
5 then made about John Locke (1632- and Crimes published in 1766
1704) according to whom the laws brought a revolution in the theory
made must respect the right to liberty and practice of punishment, because,
and property; and laws must be made according to him, punishment of
for the good of the people. 45 crime must be used only for the
defence of the State and the people
10 39. Ruthnaswamy then takes the
and not for retribution and revenge
reader to France and mentions about
which principles were holding the
Montesquieu (1689-1755), who in
field then.
his famous Spirit of Laws published
in 1748, which has been regarded as 50 41. As per sequence of time, the next
15 a great classic of political and legal writer to be mentioned is Edmund
literature, rendered immemorial Burke (1727-1797), who was a
service to legislation and legislatures. parliamentarian, statesman and
In this monumental work, he insists political thinker. According to him
that laws and legislation should be in 55 the main essential of good laws and
20 conformity with the spirit of the legislation is that the same should be
people, if its traditions, its fit and equitable, so that the
philosophy of life, even the physical legislature has a right to demand
surroundings of the people, including obedience. He would say there are
the climate. The journey is then to 60 two fundamental principles of
25 Germany, where Leibnitz (1646- legislation equity and utility.
1717), a philosopher, mathematician
42. Blackstone is a name which is
and adviser of kings and princes in
immortal in the world of legal
Germany and Europe, took the view
jurisprudence. It is his Commentaries
that greatness of law is proved by the
65 on the Laws of England (1765)
30 fact that great rulers were also great
which has made him so. He
law- givers. Names of Augustus,
emphasised on the inviolability of
Constantine and Justinian are
common law, freedom of persons and
mentioned in this regard. The
property. After Blackstone, came
German philosopher further said that
70 Bentham (17481832) and the
35 the law must serve morality, because
Utilitarians.
what is against morals is bad law.

364
 43. Ruthnaswamy has also 45. We do not propose to dive further
acquainted the readers about the and would close this discussion by
views of Plato, Aristotle, Cicero and referring to what was stated by
Thomas Aquinas, so also what Ihering (1818- 1892) in his "Geist
5 Voltaire (16941773) had to say. We 40 Des Romisches Rechts" (The Spirit
do not propose to burden this of Roman Law), which has been
judgment with their views; but what accepted as a legal classic. According
was said by Macaulay (1800-1859) to Ihering, law is a means to an end.
has to be noted, because it is he who He laid down the following general
10 had drafted our Penal Code. 45 principles of legislation:
Macaulay believed in the efficacy of
"1. Laws should be known to be
law in improving people and their
obeyed.
character. He wrote:
2. Laws should answer expectations.
"When a good system of law and
15 police is established, when justice is 3. Laws should be consistent with
administered cheaply and firmly, 50 one another.
when idle technicalities and 4. Laws should serve the principle of
unreasonable rules of evidence no Utility.
longer obstruct the search for truth, a
20 great change of the better may be 5. Laws should be methodical.
expected which shall produce a great 6. Laws must be certain to be
effect on the national character." 55 obeyed, must not become a dead
44. In Chapter 6 of the book, letter.
Runthnaswamy has stated that after 7. Laws are necessary to ward off the
25 the principles of Benthamism and danger of the operations of egoism or
utilitarianism, reason, utility and self- interest, the ordinary motives of
individual liberty had exhausted 60 human action.
themselves, humanitarianism
occupied the field and it is this 8. Law and legislation must aim at
30 principle which has seen the justice which is that which suits all.
enactments of statutes like 9. Laws are interconnected "laws like
Workmen's Compensation Act, human beings lean on one another."
Factories Act and various other
statutes dealing with public health, 65 46. That humanitarianism is the
35 sanitation and weaker Sec.. throbbing principle of legislation
presently has also been highlighted

365
 by Kartar Singh Mann in his article in his article "Euthanasia Is it
"Working of Legislatures in the murder?" [as printed at pp. 2 to 7 of
matter of Legislation" appearing at Australian Journal of Forensic
pp. 491 to 495 of the Journal of 40 Sciences, Vol. 21 (1), September
5 Parliamentary Information, Vol. 33, 1988] is also relevant for our
1987. What has been stated by Mann purpose. That article was concluded
at p. 493 is relevant for purpose the at p. 7 in these words:
same being:
"I have necessarily spoken about the
"In the historical perspective, one can 45 law as it is. There is nothing
10 easily appreciate the complexities immutable about it. To the extent it
and intricacies of legislation which does not meet social needs and a
the present legislatures are to face. strong consensus emerges to that
Besides the ordinary laws which effect, the law can and should be
safeguard the rights and liberties of 50 changed......
15 the individual, there are certain
48. The aforesaid show that law has
fundamental laws which ordinary
many promises to keep including
legislation may not change. In
granting of so much of liberty as
countries like France, Germany and
would not jeopardise the interest of
India which are having their written
55 another or would affect him
20 Constitutions their fundamental laws
adversely, i.e., allowing of stretching
are embodied there itself. The
of arm up to that point where the
fundamental principles on which the
other fellow's nose does not begin.
political life of the people is based
For this purpose, law may have
are individuality, equality and justice.
60 "miles to go". Then, law cannot be
25 After securing the life and liberty of
cruel, which it would be because of
the State and of the individual, laws
what is being stated later, if persons
and legislations take on the task of
attempting suicide are treated as
serving and promoting the good life
criminals and are prosecuted to get
of the State and the people. For good
65 them punished, whereas what they
30 life, morality is necessary and to
need is psychiatric treatment,
maintain morality legislation is a
because suicide basically is a "call
must. Legislation is the framework
for help", as stated by Dr (Mrs)
which is required to be made for
Dastoor, a Bombay Psychiatrist, who
good life."
70 heads an Organisation called
35 47. What was opined by Ian Temy, "Suicide Prevent". May it be
Q.C., Director of Public Prosecution reminded that a law which is cruel

366
 violates Article 21 of the which the sovereign power in the
Constitution, a la, Deena v. Union of State desires to prevent;
India29.
(2) among the measures of
(4) Why is a particular act treated as prevention selected is the threat of
5 crime? What acts are so treated? 40 punishment; and (3) legal
proceedings of a special kind are
49. Earliest reference to the word
employed to decide whether the
"crime" dates back to 14th century
person accused did in fact cause the
when it conveyed to the mind
harm, and is, according to law, to be
something reprehensible, wicked or
45 held legally punishable for doing so.
10 base. Any conduct which a
(See pp. 1 to 5 of Kenny's Outlines of
sufficiently powerful Sec. of any
Criminal Law, 19th Edn., for the
given community feels 29 (1983) 4
above propositions.)
SCC 645: 1983 SCC (Cri) 879: AIR
1983 SC 1155 to be destructive of its 52. Protection of society is the basic
15 own interest, as endangering its 50 reason of treating some acts as crime.
safety, stability or comfort is usually Indeed it is one of the aims of
regarded as heinous and it is sought punishment. Where there is no
to be repressed with severity and the feeling of security, there is no true
sovereign power is utilised to prevent freedom. What is the effect of the
20 the mischief or to punish anyone who 55 same cannot be described better than
is guilty of it. Very often crimes are what was stated by Hobbes in
creations of government policies and Leviathan, which is:
the Government in power forbids a
"There is no place for industry,
man to bring about results which are
because the fruit thereof is uncertain;
25 against its policies.
60 and consequently no culture of the
50. In a way there is no distinction earth; no navigation nor use of the
between crime and tort, inasmuch as commodities that may be imported
a tort harms an individual whereas a by sea; no commodious building; no
crime is supposed to harm a society. instrument of moving and removing
30 But then, a society is made of 65 such things as require much forces;
individuals, harm to an individual is no knowledge of the face of the
ultimately harm to society. earth; no account of time; no arts, no
letters; no society; and which is
51. A crime presents these
worst of all continual fear and danger
characteristics: (1) it is a harm,
70 of violent death; and the life of a
35 brought about by human conduct

367
 solitary, poor, nasty, brutish and of others to do so would be wise, or
short." even right. These are good reasons
for remonstrating with him or
53. As constitutionality of Sec. 309
40 reasoning with him, or persuading
has been assailed as being violative
him, or entreating him, but not for
5 of Article 21 which protects life and
compelling him, or visiting him with
personal liberty, it would be in
any evil in case he does otherwise.
fitness of things to note what J.S.
To justify that, the conduct from
Mill had to say about making an act
45 which it is desired to deter him must
relatable to personal liberty
be calculated to produce evil to
10 punishable. This is what Mill had
someone else. The only part of the
said in this connection in his famous
conduct of anyone, for which he is
tract On Liberty :
amenable to society is that which
"The object of this Essay is to assert 50 concerns others. In the part which
one very simple principle, as entitled merely concerns himself, his
15 to govern absolutely the dealings of independence is, of right, absolute.
society with the individual in the way Over himself, over his own body and
of compulsion and control, whether mind, the individual is sovereign."
the means used be physical force in 55 (emphasis supplied)
the form of legal penalties or the
54. The very definition of 'crime'
20 moral coercion of public opinion.
depends on the values of a given
That principle is that the sole end for
society. To establish this what has
which mankind are warranted
been stated by Justice Krishna Iyer in
individually or collectively, in
60 his book Perspectives in
interfering with the liberty of action
Criminology, Law and Social
25 of any of their number, is self-
Change (1980) at pp. 7 and 8 may be
protection. That the only purpose for
noted:
which power can be rightfully
exercised over any member of a "What is a sex crime in India may be
civilised community, against his will, 65 sweetheart virtue in Scandinavia.
30 is to prevent harm to others. His own What is an offence against property
good, either physical or moral, is not in a capitalist society may be a lawful
a sufficient warrant. He cannot way of life in a socialist society.
rightfully be compelled to do or What is permissible in an affluent
forbear because it will be better for 70 economy may be a pernicious vice in
35 him to do so, because it will make an indigent community. Thus,
him happier, because, in the opinions

368
 criminologists must have their feet 217 of the 3rd printing (1973)
all the time on terra firma." mention has been made about seven
steps for combating a crime. We may
55. Not only this, crimes can also be
not go into the details. Sufficient to
created or abolished with the passage
40 say that the steps relate to different
5 of time, as stated at p. 7 of R.S.
disciplines.
Cavan's Criminology (2nd Edn.).
This has been elucidated by the 57. Professor Dr N.V. Paranjape,
author by stating that in democracy Professor and Head of the
where individual opinion can express Department of Postgraduate and
10 itself freely through speaking, 45 Research in Law and Dean Faculty of
writing and elections, public opinion Law, Jabalpur University, in his book
becomes the final arbiter in placing Criminiology and Penology has
the opprobrium of crime upon a something to say in Chapter VI about
specific type of behaviour and when causes of crime, knowledge of which
15 a law is not accepted the police may 50 is necessary to combat and prevent
attempt to enforce it against public the same. Dr Paranjape states that in
opinion, but gradually the police the absence of a single theory of
yield to the pressure of public crime-causation, criminologists have
opinion, which they perhaps share. offered different explanations to
20 The law may remain on the statute 55 justify their own theory as an
books but be ignored by all. Whereas explanation of delinquent behaviour.
when the public opinion supports the There are, however, some writers
law, many pressures of an informal who seem to be convinced that no
nature are brought against the single theory of crime can fully
25 violators to aid and lessen the police 60 explain the causes of crime. They
action. therefore prefer a multiple approach
to criminal behaviour which suggests
(5) How can crimes be prevented ?
that crime is generated not as a result
56. The aforesaid subject is too wide of one solitary factor but as a
and cannot be discussed 65 consequence of a combination of
30 meaningfully within the parameters such factors.
available to us in this judgment. The
58. Justice Krishna lyer also in his
treatise on Crime and its Prevention
aforesaid book has dealt with this
edited by Stephen Lewin, Editor,
aspect in Chapter 2 captioned "The
World Week Magazine, would show
70 Pathology of Indian Criminology". In
35 how complicated the subject is. At p.
his usual inimitable style, he has

369
 painted the crime scenario on a broad custodial sentence and to give
canvas and has mentioned about reasons for imposing a custodial
various factors which lead to sentence, except for the most serious
commission of crimes. offences;
5 59. Reference may also be made to 40 Encouraging more use of financial
the White Paper presented to the penalties, especially compensation to
Parliament by Her Majesty's victims and fines which take account
Government in 1990 on the subject of offenders' means; Making the time
of "Crime, Justice and Protecting the actually served in prison closer to the
10 Public", published as Cm. No. 965. 45 sentence ordered by the court,
The White Paper has summarised replacing the present system of
main proposals as below: remission and parole by new
arrangements which ensure that all
"A coherent legislative framework
prisoners serve at least half their
for sentencing with the severity of
50 sentences in custody; prisoners
15 the punishment matching the
serving sentences of 4 years or more
seriousness of the crime and a
would not get parole if this would put
sharper distinction in the way the
the public at risk; New powers for
courts deal with violent and non-
the courts to return released prisoners
violent crimes; New powers for the
55 to custody up to the end of their
20 Crown Court to impose longer
sentence, if they are convicted of a
sentences for violent and sexual
further imprisonable offence;
offences, if this is necessary to
protect the public from serious harm; All prisoners serving sentences of a
year or more to be supervised by the
New powers for all courts to combine
60 probation service on release, with
25 community service and probation and
new national standards for
to impose curfews on offenders so
supervision;
that more offenders convicted of
property crimes can be punished in Wider powers for the courts to make
the community; parents take more responsibility for
65 crimes committed by their children;
30 Reducing the maximum penalties for
theft and burglary, except burglaries More flexible powers for the courts
of people's homes, which can be a to deal with 16 and 17 year old
very serious matter; Requiring the offenders; Changing the juvenile
courts to consider a report by the courts to youth courts, to deal with
35 probation service before giving a 70 defendants under the age of 18."

370
 60. It would be of some interest in has been able to reduce the number
this connection to point out that as of murders. Bhagwati, J. as he then
late as 1991 a need was felt by the was, in his dissenting judgment in the
British Government to issue a Royal case of Bachan Singh v. State of
5 Warrant for issuing a commission to 40 Punjab30 has brought home well this
examine the effectiveness of the aspect of the matter.
criminal justice in England and
63. While on the question of
Wales in securing the conviction of
sentencing it would be rewarding to
those guilty of criminal offences and
note that sentencing has been
10 the acquittal of those who were
45 regarded as a subtle art of healing,
innocent. For this purpose, the Royal
and the legal and political people
Warrant wanted the commission to
uninstructed in the humanist strategy
make its recommendation on various
of reformation, fail even on first
aspects of the criminal justice. The
principles. Justice lyer in his
15 commission submitted its report in
50 aforesaid book has further stated at p.
July 1993 and it contains
47 that it puzzles a Judge or a Home
recommendations which number 352
Secretary to be told in Shavian
and have been mentioned at pp. 188
paradox:
and 219 of the Report issued by Her
20 Majesty's Stationery Office. "If you are to punish a man
55 retributively, you must injure him. If
61. The difficult task of crime
you are to reform him, you must
prevention would not therefore
improve him. And men are not
permit the solution to be put into a
improved by injuries."
strait- jacket; it has to be modulated
25 and moulded as per time and clime. 64. What was said by Victor Hugo in
60 his Les Miserables is instructive:
Effect of Punishment
"We shall look upon crime as a
62. The aforesaid is not enough for disease. Evil will be treated in charity
our purpose. We have also to know instead of anger. The change will be
as to whether infliction of simple and sublime. The cross shall
30 punishment can be said to have a 65 replace the scaffold, reason is on our
direct relation with the reduction of side, feeling is on our side and
criminal propensity. It would be experiment is on our side."
enough in this context to state that it
65. This is not all. It would be wrong
has been seriously doubted whether
to think that a person attempting to
35 imposition of even death sentence
70 commit suicide does not get

371
 punished. He does. The agony be best illustrated by the view taken
undergone by him and the ignominy by the conservative English society
to be undergone is definitely a where to start with suicide itself was
punishment, though not a corporal regarded as a felony requiring burial
5 punishment; but then, Sec. 309 has 40 in a public highway, followed by
provided for a sentence 30 (1982) 3 forfeiture of all the properties of the
SCC 24: 1982 SCC (Cri) 535 : AIR deceased to the Crown. Presently, the
1982 SC 1325 of fine also. Agony Suicide Act, 1961 does not even
and ignominy undergone would be regard attempt to suicide as an
10 far more painful and deterrent than a 45 offence.
fine which too may not come to be
67. Various social forces like the
realised if the person concerned were
economy, religion and
to be released on probation.
socioeconomic status are responsible
(6) Why is suicide committed? for suicides. There are various
50 theories of suicide, to wit,
15 66. "Suicide, the intentional taking of
sociological, psychological,
one's life, has probably been a part of
biochemical and environmental (Ibid,
human behaviour since pre-history.
pp. 1523-24).
Many ancient texts including the
Bible, the Koran and the Rig Veda, 68. The causes of suicides are many
20 mention suicide. Because the act of 55 and varying inasmuch as some owe
self-destruction represents an attack their origin to sentiments of
on some of our presumptions that life exasperation, fury, frustration and
is to be lived and death feared revolution; some are the result of
responses to suicide have involved a feeling of burden, torture, and
25 variety of emotionally-charged 60 sadness. Some are caused by loss of
attitudes. These have ranged from employment, reversal of fortune,
approbation accorded to it by the misery due to illness, family trouble
ancient Greek stoics to, more and thwarted love. Sometimes killing
typically, the fear and superstitution is in opposition to society and
30 that led 18th century Europeans to 65 sometimes in opposition to particular
drive stakes through the hearts of persons. This happens when the
those who had committed suicide." person committing suicide nurses a
feeling of unjust treatment,
[Encyclopaedia of Crime and Justice
maltreatment and cruelty. [See the
(1 983), Vol. 4, p. 5 20] The change
70 Causes of Suicide by Maurice
35 in social thinking in this regard can
Halbwacks (translated by Harold

372
 Goldblatt).] The Bombay judgment commission of suicides. In his
has mentioned many causes in aforementioned article, Shri Faizan
paragraph 12 of its judgment which Mustafa pointed out that the number
have been noted in paragraph 15 of suicides by the youths below 18 in
5 above. The same may not be 40 1986 was 7545. But out of about
repeated. 60,000 persons who committed
suicide in 1990 nearly half of them
(7) Who commits suicide?
were aged between 18 to 25, which is
Secularisation of suicide.
generally considered to be the best
69. Suicide knows no barriers of 45 period of a person's life.
10 race, religion, caste, age or sex. In a
71. As per the report published in
study undertaken in United States, to
Indian Express of 31-10- 1984, in
which reference has been made at p.
Ahmedabad city 5 suicide cases had
14 of Suicidology: Contemporary
occurred during 24 hours
Developments by E.S. Scheneidman,
50 immediately preceding 30th October.
15 (1976), it was found that both Roman
In a write-up as published in India
Catholics and Protestants were
Today of 15-101984 under the
equally susceptible to commission of
caption "Bangalore: The Suicide
suicide. It is because of this that it
City", it has been stated that
has been felt in the United States that
55 Bangalore which had earned the title
20 there is "secularisation of suicide". In
of "Boom City" nearly a year ago,
our country also Hindus, Muslims,
could more appropriately be
Sikhs, Christians, Buddhists, Jains
described as "Doom City" by last
and Parsis are known to have been
month. The figures collected for the
committing or attempting suicides.
60 first half of the year shocked the
25 Though there has been no particular
members of the State Legislature
study as to the religious faith of the
because of incredible 664 suicidal
persons committing suicide or
deaths over a six-month period,
attempting to commit suicide, it can
which was higher than the total
safely be stated that there is
65 combined figures for Calcutta and
30 "secularisation of suicide" in our
Hyderabad in the last three years. (8)
country also.
How suicide-prone persons should be
70. While on the question "Who dealt with?
commits suicide?", it would be
72. We now come to the question
relevant to state that there has been
70 relating to the treatment to be given
35 great increase in the number of
to the persons who attempt to

373
 commit suicide. Do they deserve only to a few, would become widely
prosecution because they had failed? known, making the life of the victim
is the all important question. The still more intolerable. Is it not cruel
answer has to be a bold NO. The 40 to prosecute such a person?
5 reasons are not far to seek. Let us
74. We would go further and state
illustrate this first by referring to the
that attempt to commit suicide by
case of those 20 persons who
such a woman is not, cannot be, a
committed suicide in Tamil Nadu
crime. What is crime in such a case is
distressed as they felt because of
45 to prosecute her with a view to get
10 prolonged illness of Chief Minister,
her punished. It is entirely a different
M.G. Ramachandran. That this had
matter that at the end of the trial, the
happened was published in the Indian
court may impose a token fine or
Express of 28-10-1984. Question is
even release the convict on
whether these persons would have
50 probation. That would not take care
15 deserved prosecution had they failed
of the mental torture and torment
in their attempt? The answer has to
which the woman would have
be that there can be no justification to
undergone during the course of the
prosecute such sacrificers of their
trial. Such a prosecution is, therefore,
lives. Similar approach has to be
55 par excellence persecution. And why
20 adopted towards students who jump
persecute the already tormented
into wells after having failed in
woman? Have we become soulless?
examinations, but survive. The
We think not. What is required is to
approach cannot be different qua
reach the soul to stir it to make it
those girls/boys who resent arranged
60 cease to be cruel. Let us humanise
25 marriages and prefer to die, but
our laws. It is never late to do so.
ultimately fail.
75. Suicide, as has already been
73. Let us come to the case of a
noted, is a psychiatric problem and
woman who commits suicide
not a manifestation of criminal
because she had been raped. Would it
65 instinct. We are in agreement with Dr
30 not be adding insult to injury, and
(Mrs) Dastoor that suicide is really a
insult manifold, to require such a
"call for help" to which we shall add
woman in case of her survival, to
that there is no "call for punishment"
face the ignominy of undergoing an
in it. Mention may also be made
open trial during the course of which
70 about what was observed in "The
35 the sexual violence committed on her
Attitudes of Society towards
which earlier might have been known
Suicide", a xerox copy of which is a

374
 part of written submissions filed on enjoyment). All these objectives
behalf of Respondent 2 (State of were said to be earthly, whereas
Orissa) in W.P. No. (Crl.) 419 of others are to be accomplished beyond
1987. It has been stated in this article life. When the earthly objectives are
5 at p. 9 that shortly after passing of 40 complete, religion would require a
the Suicide Act, 1961 (in England), person not to cling to the body. Shri
the Ministry of Health issued Tripathi stated that a man has moral
recommendation advising all doctors right to terminate his life, because
and authorities that attempted suicide death is simply changing the old
10 was to be regarded as a "medical and 45 body into a new one by the process
social problem", as to which it was known as Kayakalp, a therapy for
stated that the same was "more in rejuvenation.
keeping with present-day knowledge
78. Insofar as Christians are
and sentiment than the purely
concerned, reference may be made to
15 moralistic and punitive reaction
50 what Pope John Paul 11 stated when
expressed in the old law".
he gave his approval to the document
76. So what is needed to take care of issued by the sacred congregation
suicide-prone persons are soft words stating:
and wise counselling (of a
when inevitably death is imminent in
20 psychiatrist) and not stony dealing by
55 spite of the means used, it is
a jailor following harsh treatment
permitted in conscience to take
meted out by a heartless prosecutor.
decision to refuse forms of treatment
(9) Is suicide a non-religious act? that would only secure precarious
and burdensome prolongation of life,
77. Every individual enjoys freedom
60 so long as the normal care due to sick
25 of religion under our Constitution,
person in similar cases is not
vide Article 25. In a paper which Shri
interrupted......
G.P. Tripathi had presented at the
World Congress on Law and 79. In the Encyclopaedia of Religion,
Medicine held at New Delhi under Vol. 8 (1987), mention has been
30 the caption "Right to die", he stated 65 made at pp. 541 to 547 as to how
that every man lives to accomplish "life" has been understood by
four objectives of life: (1) Dharma different religions. After discussing
(religion and moral virtues); (2) the subject as understood by the
Artha (wealth); (3) Kama (love or primitive societies, Judaism,
35 desire); and (4) Moksha (spiritual 70 Christianity, Hinduism and

375
 Buddhism, the discussion has been by seeking it; modem history of
included by stating that the very act Independence says about various
of posing the question "What is life?" fasts unto death undertaken by no
produces an initial sense of 40 less a person than Father of the
5 bafflement and perplexity. It has Nation, whose spiritual disciple
been stated thereafter that a precise, Vinoba Bhave met his end only
distinct and universally acceptable recently by going on fast, from which
concept does not accompany the use act (of suicide) even as strong a
of the word "life"; and that posing of 45 Prime Minister as Indira Gandhi
10 the above query brings in its wake a could not dissuade the Acharya.
sense that life is an "inexhaustible
81. The aforesaid persons were our
storehouse of mysteries, a realm of
religious and spiritual leaders; they
endlessly self-perpetuating novelties,
are eulogised and worshipped. Even
in which the solution to any given
50 the allegation against them that they
15 problem gives rise to a plethora of
indulged in a non- religious act,
other questions that beckon the
would be taken as an act of sacrilege.
always restless, never contended
So, where is non-religiosity in the act
mind of Homo Sapiens to seek
of suicide so far as our social ethos is
further for additional answers or, at
55 concerned? And it is this ethos, this
20 least, to search out more
social mores, which our law has to
intellectually refined, morally
reflect and respect. (10) Is suicide
elevating, and spiritually salutary
immoral?
ways of pursuing the quest". So, life
does not end in this world and the 82. Law and morals often intersect
25 quest continues, may be after the end 60 and there can be no doubt that
of this life. Therefore, one who takes historically at least law and morals
life may not really be taken to have were closely related and that in many
put an end to his whole life. There is areas the law continues to look upon
thus nothing against religion in what its function as the enforcement of
30 he does. 65 morals, the reinforcement of moral
standards in society, and the
80. Insofar as our country is
punishment of moral depravity, as
concerned, mythology says Lord
noted at p. 19 of Burton M. Leiser's
Rama and his brothers took
Liberty, Justice and Morals (1973).
Jalasamadhi in river Saryu near
70 The Constitution of United States
35 Ayodhya; ancient history says
contains a number of provisions
Buddha and Mahavira achieved death
embodying moral judgments, one of

376
 which is prohibition against 'cruel Rights of Men and American
and unusual punishment". As to due Declaration of Independence are
process clause, it was stated by based on these laws.
Justice Frankfurter in Solesbee v.
40 84. In the aforesaid work of Burton,
5 Balkcom31 that it "embodies a
this aspect of the matter has been
system of rights based on moral
concluded at p. 353 by stating as
principles ... which comports with
below:
the deepest notions of what is fair
and right and just". "It is right to be law-abiding. But
45 there may be times when it is not
10 83. If, however, the law be unjust
wrong to break the law. There are no
would a person not be entitled to
easy rules or recipes to guide us in
Hisobey it? The civil disobedience
making our choices. Some people,
movement organised by leaders like
who allow themselves to be governed
Gandhiji shows that there can be
50 by expediency and narrow self-
15 clash of law and morality, which can
interest when they choose to disobey
be on 94LEd 604:339US9(1949) the
traffic, are indignant when their
battlefield of man's conscience. It is
neighbours violate laws because their
this which agitated the mind of
religious and moral convictions do
Socrates when he was in jail. He was
55 not permit them to do otherwise.
20 advised to escape and was assured
Anarchy is a terrible thing. It is all
that it would be a safe escape. He
that Hobbes said it was. It is more
refused saying that having devoted
likely to come from motives like
his life to teach the importance of
those of the speeder, the drunken
doing justice and respecting the laws,
60 driver, and the one who cheats on his
25 it would be rank hypocrisy for him to
income tax, rather than from those of
violate his principles when the laws
men like Gandhi, King (meaning
had been turned against him. Being
Martin Luther King)......
of this view, instead of breaking law,
he took poison. But then, at times an (emphasis supplied)
30 individual would be between two 65 85. Though the question of morality
horns of dilemma when confronted normally arises with laws relating to
with the question of obeying an sex and acts evincing moral
unjust and pernicious law. The depravity like cheating, but as the
theories of Divine Law and Natural question of birth and death has also
35 Law were evolved to take care of this 70 moral significance, as opined by
dilemma and French Declaration of Mary Warnock, whose views in this

377
 regard have been noted at p. 86 of others. [See H.L.P. Hart's Law,
Simon Lee's Laws and Morals Liberty and Morality (1982) also
(1986), we may briefly advert to the particularly pp. 30 and 3 1.]
moral aspect as well relating to
40 87. It would be apposite, while on the
5 suicide. It is the sanctity of human
question of morality, to refer to the
life which is said to be defaced when
Constitution Bench decision of this
one commits suicide and the question
Court in Ranjit D. Udeshi v. State of
of morality, therefore, arises. We
Maharashtra32 in which the question
would have occasion later to refer to
45 examined was whether the novel of
10 the enactment of Suicide Act, 1961
D.H. Lawrence Lady Chatterley's
by the British Parliament, when the
Lover could be regarded as
related Bill was taken up for
"obscene" within the meaning of Sec.
consideration in the House of Lords,
292 of the Penal Code. The
the Lord Bishop of Carlisle had
50 Constitution Bench speaking through
15 raised objection on the ground of
Hidayatullah, J., as he then was,
morality by saying that sanctity of
stated in paragraph 9 that the
human life was being destroyed. But
question of obscenity depends upon
the Bill was passed, nonetheless.
the mores of the people and it is
86. A reference to Simon Lee's above 55 always a question of degree and
20 work shows there is no unanimity where the line is to be drawn. After
regarding the moral object which law going through the case law and what
should try to achieve. Simon Lee has Lawrence might have had in mind in
mentioned at p. 90 about three writing the book, the Bench
theories prevalent in England in this 60 unanimously came to the conclusion
25 regard, one of whose propounder was that Lawrence was probably
Mill, according to whom "harm-to- unfolding his philosophy of life and
others" is what ought to be prevented the urges of the unconscious, which
by law. Devlin would have liked that caused no loss to the society if there
law should aim to establish minimum 65 was a message in the book. After
30 and not maximum standards of examining the contents of the book
behaviour showing respect for from this standard it was held it
tolerance and privacy. Hart's contained no obscenity. The
approach was that only "the universal importance of this decision for our
values" merited legal support and not 70 purpose is that the aforesaid book
35 those which fluctuate according to was regarded as morally
fashion, unless harm is caused to objectionable at one point of time

378
 even in England, where moral suicide in such cases are quite
standard relating to sex is on a lower hurting; but then, it is a matter of
key compared to ours. extreme doubt whether by booking a
person who had attempted to commit
88. The above shows that morality
40 suicide to trial, suicides can be taken
5 has no defined contours and it would
care of. Even imposition of death
be too hazardous to make a bold and
sentences has not been able to take
bald statement that commission of
care of commission of murders, as
suicide is per se an immoral act. If
mentioned earlier.
human beings can be treated
10 inhumanly, as a very large segment 45 90. Further, the aforesaid adverse
of our population is, which in a sociological effects are caused by the
significant measure may be due to death of the person concerned, and
wrong (immoral) acts of others, not by one who had tried to commit
charge of immorality cannot be, and suicide. Indeed, those who fail in
15 in any case should not be, levied, if 50 their attempts become available to be
such human beings or like of them, more or less as useful to the family
feel and think that it would be better as they were. So the person to be
to end the wretched life instead of punished is one who had committed
allowing further humiliation or suicide; but, he is beyond the reach
20 torture. Those who demand virtue 55 of law and cannot be punished. This
must do virtue and should see that can provide no reason to punish a
others too do the same. person who should not be punished.
32 AIR 1965 SC 881 : (1965) 1 SCR
(11) Does suicide produce adverse
65 : (1965) 2 Cri LJ 8 (12) Is suicide
sociological effects?
60 against public policy?
25 89. One of the points raised against
91. The basic argument of Shri
suicide is that the person who had so
Sharma, learned counsel for the
done might have been the sole bread-
Union of India, was that allowing
earner of the family, say a husband, a
persons to commit suicide would be
father, because of whose death the
65 against public policy. Though which
30 entire family might have been left in
public policy would be so affected
lurch or doldrums, bringing in its
was not spelt out by the learned
wake untold miseries to the members
counsel, we presume that the public
of his family. It is therefore stated
policy to be so jeopardised is one
that suicide has adverse effects on the
70 which requires preservation of
35 social setup. No doubt, the effects of
human life. One of the objects of

379
 punishment to be inflicted when an which is best for the common good
offence is committed is protection of of the community; and in that sense
society from the depredations of there may be every variety of
dangerous persons, as mentioned at 40 opinion, according to education
5 p. 198 of Burton M. Leiser's Liberty, habits, talents and dispositions of
Justice and Morals. But insofar as each person, who is to decide
suicide is concerned, this object does whether an act is against public
not get attracted because there is no policy or not. To allow this to be a
question of protection of the society 45 ground of judicial decision, would
10 from depredation of dangerous lead to the greatest uncertainty and
persons, who by the very nature of confusion. It is the province of the
things have to be those who cause statesman and not the lawyer, to
harm to others and not to themselves. discuss, and of the Legislature to
Of course, we would concede that 50 determine what is best for the public
15 one of the interests of the State has to good and to provide for it by proper
be preservation of human life. enactments. It is the province of the
judge to expound the law only; the
92. The concept of public policy is,
written from the statutes; the
however, illusive, varying and
55 unwritten or common law from the
uncertain. It has also been described
decisions of our predecessors and of
20 as "untrustworthy guide", "unruly
our existing courts, from text writers
horse" etc. The leading judgment
of acknowledged authority, and upon
describing the doctrine of public
the principles to be clearly deduced
policy has been accepted to be that of
60 from them by sound reason and just
Parke, B. in Egerton v. Brownlow 33
inference; not to speculate upon what
25 in which it was stated as below at p.
is the best, in his opinion, for the
123, as quoted in paragraph 22 of
advantage of the community.
Gherulal Parakh v. Mahadeodas
Maiya34: Some of these decisions may have no
65 doubt been founded upon the
"Public policy' is a vague and
prevailing and just opinions of the
30 unsatisfactory term, and calculated to
public good; for instance, the
lead to uncertainty and error, when
illegality of covenants in restraint of
applied to the decision of legal
marriage or trade. They have become
rights; it is capable of being
70 a part of the recognised law, and we
understood in different senses; it
are therefore bound by them, but we
35 may, and does, in its ordinary sense,
are not thereby authorised to
mean 'political expedience' or that

380
 establish as law everything 33 (1853) out that the concept of public policy
4 HLC 121 34 AIR 1959 SC 781: is capable of expansion and
1959 Supp (2) SCR 406 which we modification. In Ratanchand case38 a
may think for the public good, and 40 Bench of Andhra Pradesh High Court
5 prohibit everything which we think speaking through Chinnappa Reddy,
otherwise." J. as he then was, quoted at p. 117 a
significant passage from Professor
93. In the aforesaid case a three-
Winfield, "Essay on Public Policy in
Judge Bench of this Court
45 the English Common Law" (42
summarised the doctrine of public
Harvard Law Review 76). The same
10 policy by stating at p. 795 that public
is as below:
policy or policy of law is an illusive
concept; it has been described as "Public policy is necessarily variable.
"untrustworthy guide", "variable It may be variable not only from one
quality", "uncertain one", "unruly 50 century to another, not only from one
15 horse" etc. generation to another but even in the
same generation. Further it may vary
94. Different High Courts of the
not merely with respect to the
country have had also occasion to
particular topics which may be
express their views on this concept in
55 included in it, but also with respect to
their judgments in Bhagwant Genuji
the rules relating to any one
20 Girme v. Gangabisan Ramgopal35;
particular topic.... This variability of
Mafizuddin Khan Choudhury v.
public policy is a stone in the edifice
Habibuddin Shekh36; Kolaparti
of the doctrine and not a missile to be
Venkatareddi v. Kolaparti Peda
60 flung at it. Public policy would be
Venkatachalam37 and Ratanchand
almost useless without it."
25 Hirachand v. Askar Nawaz Jung38.
In Kolaparti case37 it was stated that 95. As to how the "unruly horse" of
the term public policy is not capable public policy influenced English law
of a precise definition and whatever has been narrated by W. Friedman in
tends to injustice of operation, 65 his Legal Theory (5th Edn.) at p. 479
30 restraint of liberty, commerce and et seq in Part 111, Sec. 2 titled as
natural or legal rights; whatever "Legal Theory, Public Policy and
tends to the obstruction of justice or Legal Evaluation". As to the
to the violation of a statute and description of public policy as
whatever is against good morals can 70 "unruly horse", it may be stated that
35 be said to be against public policy. there have been judges not to shy
These decisions have also pointed away from unmanageable horses.

381
 Lord Denning is one of them. What needs, social customs, and moral
this noble judge stated in Enderby aspirations, of the people. Barwin v.
Town Football Club Ltd. v. Football Reidy41.
Association Ltd.39 at p. 606 is "With
'Public policy' is in its nature so
5 a good man in the saddle, the unruly
40 uncertain and fluctuating, varying
horse can be kept in control. It can
with the habits and fashions of the
take jump over obstacles." (See para
day, with the growth of commerce
93 of Central Inland Water Transport
and the usages of trade, that it is
Corpn. Ltd. v. Brojo Nath
difficult to determine its limits with
10 Ganguly40.) But how many judges
45 any degree of exactness. It has never
can be anywhere near Lord Denning
been defined by the courts, but has
? He is sui generis.
been let loose and free from
35 AIR 1940 Bom 369: 42 BLR 750: definition in the same manner as
191 IC 806 36 AIR 1957 Cal 336 37 fraud. Pendeleton v. Greever42.
15 AIR 1964 AP 465: (1964) 1 Andh 50 'Public policy' is a term that is not
WR 248 38 AIR 1976 AP 112: ILR always easy to define and it may vary
(1975) AP 843 :(1975) 1 APLJ (HC) as the habits, opinions and welfare of
39 (1971) Ch 591, 606 40 (1986) 3 a people may vary, and what may be
SCC 156: 1986 SCC (L&S) 429: the public policy of one State or
20 (1986) 1 ATC 103 : AIR 1986 SC 55 country may not be so in another.
1571 Franklin Fire Ins. Co. V. Moll 43.
96. The magnitude and complexity of 97. In the aforesaid work under the
what is or is not public policy or can sub-heading "Government by
be a part of public policy, would be Constitution, laws or judicial
25 apparent from bird's eye view of 60 decisions", the following finds place
what has been stated regarding this at at p. 481 under the further sub-
pp. 454 to 539 of Words and Phrases heading "In general":
(Permanent Edn., Vol. 35, 1963). To
"'Public policy' is a variable quantity
bring home this a few excerpts would
and is manifested by public acts,
30 be enough. It has been first stated
65 legislative and judicial, and courts
under the sub-heading "In general" as
will not hold a contract void.
below at pp. 455 and 456:
Draughton v. Fox Pelletir Corpn.44
" 'Public policy' imports something In a judicial sense, public policy does
that is uncertain and fluctuating, not mean simply sound policy, or
35 varying with the changing economic 70 good policy, but it means the policy

382
 of a State established for the public (14) Is apprehension of
weal, either by law, by courts, or 35 "constitutional cannibalism"
general consent. Clough v. justified?
Gardiner45."
100. This is one of the criticisms
5 98. From the above, it can safely be which has been advanced in one of
said that it would be an uninformed the aforesaid articles relating to the
man in law who would say with any 40 Bombay judgment2. This contention
degree of definiteness that has been advanced because if the
commission of suicide is against negative aspect of right to life, i.e., to
10 public policy; and, as such, a person destroy it can be read in Article 21,
attempting to commit it acts against the State can "easily embark upon a
public policy. 45 policy to encourage genocide on the
plea that proper management of
(13) Does commission of suicide
resources are vital and necessary for
damage the monopolistic power of
the upkeep of life with vigour and
15 the State to take life?
dignity in the wake of geometrical
99. The aforesaid point is not 50 progression of population growth".
required to be gone into detail, The critic has stretched this argument
because nobody can claim to have so much to come to the conclusion of
monopoly over a human life. It is "constitutional cannibalism" that we
20 God alone who can claim such a may almost leave it unanswered, as
power. If a person takes his life, he is 55 there is a gulf of difference between
taking his own life, and not the life of taking of one's own life and allowing
anybody else; and so, the argument the State to go in for genocide. They
that State's 41 307 P 2d 175, 181: 62 are not only poles apart but miles
25 N.M. 183 42 j 193 p. 885, 887, j 80 apart.
Ok 1, 35: 17 ALR 317 43 58 NE 2nd
60 101. The Editor of Calcutta Weekly
947, 950, 951': 115 Ind. App. 289 44
Notes in his comments at pp. 37 to
126 SW 2d 329, 333 : 174 Tenn 457
40 [of (1986-87) 91 CWN (Journal
45 182 NYS 804, 806: III Mis. 244
Sec.)] has observed that the
30 monopolistic power of taking life is
distinction made by the Bombay
taken away by the person who
65 High Court between "suicide" and
attempts to commit suicide has no
"euthanasia" appears logically
legs to stand on.
inconsistent. According to the Editor,
the rationale of the judgment would
necessarily permit euthanasia as

383
 legal. This comment may not be raised by the Andhra Pradesh High
quite incorrect, because in passive Court in its judgment in
euthanasia, wherever it has been Jagadeeswar3 does not seem to be
accepted as legally permissible, 40 justified. We do not agree with the
5 consent of the patient, if he be in a view of the Andhra Pradesh High
sound mental condition, has been Court in that if Sec. 309 were to be
regarded as one of the prerequisites. held bad, it is highly doubtful
So, if one could legally commit whether Sec. 306 could survive, as
suicide, he could also give consent 45 self-killing is conceptually different
10 for his being allowed to die. But from abetting others to kill
then, the legal and other questions themselves. They stand on different
relatable to euthanasia are in many footing, because in one case a person
ways different from those raised by takes his own life, and in the other a
suicide. One would, therefore, be 50 third person is abetted to take his life.
15 right in making a distinction logically
(15)Recommendation of the Law
and in principle between suicide and
Commission of India and follow-up
euthanasia, though it may be that if
steps taken, if any.
suicide is held to be legal, the
persons pleading for legal acceptance 103.The Law Commission of India in
20 of passive euthanasia would have a 55 its 42nd Report (1971) recommended
winning point. For the cases at hand, repeal of Sec. 309 being of the view
we would remain content by saying that this penal provision is "harsh and
that the justification for allowing unjustifiable" (see paragraph 16.33 of
persons to commit suicide is not the Report). In taking this view, the
25 required to be played down or cut 60 Law Commission quoted the
down because of any encouragement following observations made by H.
to persons pleading for legalisation Romilly Fedden in Suicide (London,
of mercy-killing. 1938) at page 42:
102. May we hasten to observe that "It seems a monstrous procedure to
30 as regards the persons aiding and/or 65 inflict further suffering on even a
abetting suicide, the law can be single individual who has already
entirely different, as indeed it is even found life so unbearable, his chances
under the Suicide Act, 1961 of of happiness so slender, that he has
England. Bombay judgment2 has been willing to face pain and death in
35 rightly made this distinction. It is for 70 order to cease living. That those for
this reason that the apprehension whom life is altogether bitter should

384
 be subjected to further bitterness and 35 106.We propose to refer to two
degradation seems perverse leading countries only in this regard
legislation." they being United Kingdom and
United States of America. We have
104.After the aforesaid Law
selected them because the first is a
5 Commission's Report became
40 conservative country and the second
available, the recommendation was
a radical; the first is first in point of
accepted by the Government of India
time as regards democratic
and the Indian Penal Code
functioning and the second is being
(Amendment) Bill, 1972 was
regarded as a serious human rights'
10 introduced in the Rajya Sabha to
45 protagonist. At English Common
repeal Sec. 309. The Bill was
Law suicide was taken as felony as
referred to a Joint Committee of both
much so that a person who had met
the Houses and after receipt of its
his end after committing suicide was
report, the Bill was passed with some
not allowed Christian burial, but
15 changes by the Rajya Sabha in
50 would have to be so done in a public
November 1978. The Bill so passed
highway. Not only this, the property
was pending in the Sixth Lok Sabha
of the person concerned used to get
when it was dissolved in 1979,
forfeited to the Crown. [See pages
because of which the Bill lapsed.
290 to 207 of Law and Morality
20 105. In the counter-affidavit filed by 55 edited by Louis Bloom Cooper and
the Union of India in Writ Petition Gravin Drewry (1976), which pages
(Crl.) No. 409 of 1986, it has been also contain the speeches made by
further stated that a proposal for the Lord Bishop of Carlisle and Lord
reintroducing legislation in Denning in the House of Lords
25 Parliament on the lines of the lapsed 60 during second reading of The Suicide
Bill is under consideration. It has Bill, 1961.]
been admitted in this affidavit that
107.Times changed, notions changed
Sec. 309 is harsh, and so, the
and presently, even attempt to
intention of the Government is more
commit suicide is not a criminal
30 or less to repeal that Sec.. (16)
65 offence, as would appear from
Global view: What is the legal
Suicide Act, 1961. Though Sec. 1 of
position in other leading countries of
this Act has only stated that the "rule
the world regarding the matter at
of law whereby it is a crime for a
hand?
person to commit suicide is hereby
70 abrogated", it has been made clear in

385
 the second para of 'General Note' In more than 20 other States, there
below this Sec., as finding place in were no penal statutes referring to
the xerox copy of this Act enclosed suicide. [See pp. 16 and 17 of
with the written submissions filed on 40 Suicidology: Contemporary
5 behalf of the State of Orissa, Developments by E.S. Scheneidman
Respondent 2 in Writ Petition (Crl.) (1976).]
No. 419 of 1987 that attempted
108. The latest American position
suicide is not a crime. This note reads
has been mentioned as below at p.
as below:
45 348 of Columbia Law Review, 1986:
10 "Attempted Suicide an attempt to
"Suicide is not a crime under the
commit suicide was a common law
statutes of any State in the United
misdemeanour. Sec. 1 does not
States. Nor does any State, by statute,
specifically say that attempted
make attempting suicide a crime. In
suicide is no longer a crime, but it
50 twenty-two States and three United
15 must follow irresistibly from the fact
States territories, however, assisting
that the completed act is no longer a
suicide is a crime. If an assistant
crime......
participates affirmatively in the
In the United States by early 1970's suicide, for instance by pulling the
comparatively small number of 55 trigger or administering a fatal dose
20 States (9) listed suicide as a crime, of drugs, courts agree that the
although no penalties (such as appropriate charge is murder."
mutilation of bodies or forfeiture of
Conclusion
estates) were exacted. In such States
suicide attempts were either felonies 109. On the basis of what has been
25 or misdemeanours and could result in 60 held and noted above, we state that
ail sentences, although such laws Sec. 309 of the Penal Code deserves
were selectively or indifferently to be effaced from the statute book to
enforced. Two of such States humanise our penal laws. It is a cruel
repealed such laws, stating in effect and irrational provision, and it may
30 that although suicide is "a grave 65 result in punishing a person again
social wrong", there is no way to (doubly) who has suffered agony and
punish it. Eighteen States had no would be undergoing ignominy
laws against either suicide or suicide because of his failure to commit
attempts, but they specified that to suicide. Then an act of suicide cannot
35 aid, advise or encourage another 70 be said to be against religion,
person to commit suicide is a felony. morality or public policy, and an act

386
 of attempted suicide has no baneful link up prison jurisprudence with
effect on society. Further, suicide or constitutional roots", of which Justice
attempt to commit it causes no harm Krishna Iyer has mentioned in his
to others, because of which State's preface (styled Krishna Iyerishly as
5 interference with the personal liberty 40 'A Word in Confidence') to his
of the persons concerned is not called aforementioned book. Whether we
for. have succeeded or not; and, if so, to
what extent is for others to judge.
110. We, therefore, hold that Sec.
309 violates Article 21, and so, it is 113. 1 desire to place on record
10 void. May it be said that the view 45 (though it would sound unusual to
taken by us would advance not only some and may be to many) my
the cause of humanisation, which is a appreciation for the assistance I had
need of the day, but of globalisation received from Shri Satish Chandra,
also, as by effacing Sec. 309, we Joint Registrar (Library) of the
15 would be attuning this part of our 50 Court, in supplying me promptly
criminal law to the global very useful and varied materials for
wavelength. preparing this judgment, as and how
required by me.
111. The writ petitions stand allowed
by declaring Sec. 309 of the Penal
20 Code as unconstitutional and hence 55
void. The proceedings in GR Case
No. 177 of 1984 (State v.
Nagbhushan Patnaik) pending in the
Court of Sub-Judge, Gunpur in the
25 District of Koraput, Orissa stands
quashed.
60
112. Before parting, we should like
to observe that what we have sought
to do through this judgment may be
30 said to be an attempt to "search for
the social dynamics of criminal law,
the functional theory of sentencing
65
and the therapeutic reach of punitive
arts, to catch up with social sciences
35 relevant to criminal justice and to

387
 43. the evil could not be taken care of by
this soft statute, the Penal code was
State of HP v. Nikku Ram – 1995 amended first by inserted Chapter
Cri LJ 4184 (SC) XX - A (containing the only Sec.
40 498-A) in it by the Criminal Law
K. RAMASWAMY & B.L. (Second Amendment) Act, 1983 (46
5 HANSARIA of 1983); and then, by insertion of
Sec. 304-B by the Dowry Prohibition
JUDGMENT: (Amendment) Act, 1986 (43 of
45 1986). Sec. 498-A seeks to protect a
JUDGMENT 1995 (3) Suppl. SCR
married woman from being subjected
177 The Judgment of the Court was
to cruelty by the husband or his
delivered by HANSARIA, J. Dowry,
relative. Sec. 304-B is aimed at those
10 dowry and dowry. This is the painful
who indulge in "dowry deaths". To
repetition which confronts, and at
50 give teeth to these provisions, Act 46
times haunts, many parents of a girl
of 1983 inserted Sec. 113-A in the
child in this holy land of ours where,
Evidence Act, permitting a court to
in good old days the belief was :
presume, having regard to the
15 "Yatra Naryastu Pujyante ramente
circumstances of the case, that
tatra dewatan" (where woman is
55 suicide by the woman was abetted by
worshipped, there is abode of God).
her husband or his relative. Similarly,
We have mentioned about dowry
Act 43 of 1986 inserted Sec. 113-B
thrice, because this demand is made
in the Evidence Act requiring some
20 on three occasions: (i) before
presumption to be drawn in case of
marriage; (ii) at the time of marriage;
60 dowry death. Amendment was also
and
made in the Code of Criminal
(iii) after the marriage. Greed being procedure making the offence of
limitless, the demands become dowry death cognizable, non-bailable
25 insatiable in many cases, followed by and triable by a Court of Session.
torture on the girl, leading to either
65 3. In the appeal at hand we are
suicide in some cases or murder in
required to decide whether the
some.
respondents had committed offences
2. The highly injurious and under Sec. 304-B and 306 which
30 deleterious effect on the girl, her punishes abetment of suicide. The
parents and the society at large 70 trial court (Sessions Judge,
required legislative interference. It Hamirpur) having acquitted all the
started with enactment of the Dowry accused of the aforesaid offences, the
Prohibition Act, 1961, containing State approached Himachal Pradesh
35 some penal provisions also. But as High Court seeking leave to appeal

388
 against the judgment of acquittal. 40 completion of investigation the
The High Court refused leave by a aforesaid persons were challaned for
short order observing "all the offences under Sec. 304-B, 306 and
essential features of the prosecution 498-A IPC, in the Court of Chief
5 case have remained unsubstantiated" Judicial Magistrate, Hamirpur. The
and the accused "could not have been 45 first two offences being exclusively
convicted on the vague and triable by Court of Session, the
unsubstantiated allegations". Hence accused persons were committed to
this appeal by special leave. stand their trial before that Court.

10 4. The couple was married on 5. During the course of the trial the
6.2,1985. 5-6 months thereafter, it is 50 prosecution examined .18 witnesses
alleged, that the husband of deceased of whom P.W. 1 Mansha Ram,
Roshani, named Nikku Ram, her P.W.4 Sant Ram, P.w, 5 Dina Nath
mother- in-law Batholi Devi, and and P.W. 8 Bidhi Chand are relations
15 sister-in-law Kamla Devi started of Roshani - being her maternal
taunting Roshani for bringing less 55 uncle, father, brother-in-law and
dowry. Demands for television, brother respectively. Others were
electric fan and buffalo etc. were formal witnesses. The letters written
made through Roshani, which not by Roshani were brought on record
20 having been fulfilled, the prosecution as Exhibits P-l, P-3 and P-4. The
case, is that the aforesaid named 60 defence was one of complete denial.
persons started treating Roshani with
cruelty. The harassment gradually 6. The trial court, after analysing the
increased so much so that on oral and documentary evidence
25 20.6.1988 Batholi is alleged to have including the testimony of P.W, 7,
given a blow with drati (a sickle like the doctor who had conducted
instrument) causing an incised 65 autopsy, came to the conclusion that
wound on the forehead of Roshani. the prosecution failed to establish the
She being unable to bear the torture charges beyond reasonable doubt
30 etc., it is said, she consumed and, therefore, acquitted all the three
naphthalene balls which proved fatal accused. As already noted, the High
and she died on 20th June itself due 70 Court refused to grant leave to
to cardio- respiratory arrest. On appeal.
police being informed, investigation
35 was taken, during the course of 7. The offence alleged being also of
which a sickle was recovered on the dowry death, which is in steep rise,
disclosure made by Batholi, Some we have examined the matter afresh,
letters written by Roshani to her 75 by applying our mind to the relevant
father also came into light. After piece of evidence brought on record

389
 by the prosecution. We shall first imprisonment for one month. Fine, if
advert to the offence under Sec. 304- paid, shall be made over to the
B. This allegation has virtually less parents of Roshani.
to stand, because the autopsy had
5 revealed only two wounds on the 8. Before coming to the offence
person of Roshani. These were : (i) a 45 under Sec. 306, we have felt called
vertical incised wound on the right upon to say a few words about the
side of forehead l-l/2"xl/2" bone deep view taken by the trial court on the
with tapering ends; and (ii) T shaped question that the demands of
10 contusion l-l/2"x 1/2" with slight television, electric fan etc., after
discharged from one end. Even if it 50 Roshani had been given in marriage,
be held that these two wounds were could not be "dowry"; so, Sec. 304-B
inflicted by an outside agency, these was not attracted in any case. This
could not have caused the death of view was taken because as per the
15 Roshani. This indeed is the evidence Explanation to sub-Sec.(l) of Sec.
of P.W.7, according to whom, the 55 304-B, the word "dowry" has the
death was because of naphthalene same meaning as in Sec. 2 of the
poisoning. This being the position, Dowry Prohibition Act, 1961. The
we are not inclined to examine learned trial court noted in this
20 whether the contusion could have connection the judgment of learned
been caused by a fall as submitted on 60 single Judge of Delhi High Court in
behalf of the respondents. But then, Inder Sain and Anr. v. The State,
we have no doubt that the first injury (1981) Crl. L.J. 1116, in which it was
had been caused on the person of held that to constitute dowry the
25 Roshani by Batholi as is the evidence valuables demanded or given must be
of P.Ws. The offence made out 65 as "consideration for the marriage".
would, however, be under Sec. 324 The learned Judge then opined that
IPC. We accordingly find Batholi only those articles are dowry which
guilty under this Sec.. As to the are given or agreed to be given for
30 sentence to be awarded for the solemnization of marriage; and
offence, keeping in view the 70 anything given after marriage is only
advanced age of Batholi, which by for a happy matrimonial relationship
now is more than 80 years, we do not and would not be dowry, As the
think if sentence of substantive demands in the present case had been
35 imprisonment is called for at this made after the marriage, the trial
length of time. According to us, ends 75 court concluded that the same would
of justice will be met by imposing a not be dowry.
fine of RSec. 3,000 which would be
paid within two months, failing 9. We have two observations to
40 which Batholi would undergo simple make. The first is that the meaning of

390
 the word "dowry" was examined as it valuable security given or agreed to
had stood before the same was be given has to be as "consideration
amended, first by Act 63 of 1984 and for the marriage", demands made
then by Act 43 of 1986. As we shall after the marriage could also be a
5 presently note, these two 40 part of the consideration, according
amendments have altered the to us, because an implied agreement
definition of dowry in a significant has to be read to give property or
way. Our second observation is that valuable securities, even if asked
even on the basis of the definition as after the marriage, as a part of
10 it stood when the decision in Inder 45 consideration for marriage, when the
Sain was rendered, it could not have Dowry Prohibition Act was enacted,
been said that anything given after the legislature was well aware of the
marriage could not be dowry. fact that demands for dowry are
made, and indeed very often, even
10. We shall first take up the second 50 after the marriage has been
15 facet. A perusal of the judgment solemnized, and this demand is
shows that dowry had been defined at founded on the factum of marriage
the relevant time as under ; It "Means only. Such demands, therefore,
any property or valuable security would also be, in our mind, as
given or agreed to be given either 55 consideration for marriage.
20 directly or indirectly :
12. The definition as amended by the
(a) by one party to a marriage to the aforesaid two Acts does not however
other party to the marriage; or leave any thing to doubt that
demands made after the
(b) by the parents of either party to 60 solemnization of marriage would be
the marriage or by any other person, dowry. This is because the definition
25 to either party to the marriage or to as amended reads as below:
any other person;
"In this Act "Dowry" means any
at or before or after marriage as property or valuable security given or
consideration for the marriage of the 65 agreed to be given either directly or
said parties, but does not include indirectly -
30 dower or mahr in the case of persons
to whom the Muslim Personal Laws (a) By one party to a marriage to the
(Shariat) applies". other party to the marriage; or

(emphasis supplied) (b) By the parents of either party to a

70 marriage or by an other person to
11. Despite the aforesaid definition
35 having stated that the property or
391
 either party to the marriage or to any 107 IPC. This was the accepted
other person. position. The stand of the
prosecution rather was that abetment
at or before or any lime after the stood established because of what
marriage in connection with the 40 has been provided in Sec. 113-A of
5 marriage of the said parties, but does the Evidence Act. That Sec. reads as
not include dower or mahr in the case below:
of person to whom the Muslim
Personal Law (Shariat) applies." "Presumption as to abetment of
suicide by a married woman: when
(Explanations omitted being not 45 the question is whether the
10 relevant) commission of suicide by woman
had been abetted by her husband or
13. The aforesaid definition makes it any relative of her husband and it is
clear that the property or the valuable shown that she had committed
security need not be as a 50 suicide within a period of seven years
consideration for marriage, as was from the date of her marriage and
15 required to be under the unamended that her husband or such a relative of
definition, This apart, the addition of her husband had subjected her to
the words "any time" before the cruelty, the court may presume,
expression "after the marriage" 55 having regard to all the other
would clearly show that even if the circumstances of the case, that such a
20 demand is long after the marriage suicide had been abetted by her
the" same could constitute dowry, if husband or by such a relative of her
other requirement of the Sec. are husband.
satisfied.
60 Explanation For the purpose of this
14. Having however held that in the Sec., "cruelty" shall have the same
25 present case the injuries as found on meaning as in Sec. 498-A of the
the person of Roshani could not have Indian Penal Code (45 of I860)".
caused here death, despite the
demands being dowry, the offence 16. This shows that if the woman had
would not attract the mischief of Sec. 65 been subjected to cruelty, as defined
30 304-B. in Sec. 498-A 1PC, the Court may
presume, having regard to all the
15. As to the offence under Sec. 306 circumstances of the case that the
IPC, trial court has first observed that suicide had been abetted by her
none of the respondents could really 70 husband or any of his relative. So, let
be said to have abetted suicide as per it be seen whether Roshani was
35 the definition of "abetment" in Sec. subjected to cruelty. A reference to

392
 Explanation (b) of Sec. 498-A shows 40 default undergo simple imprisonment
that if there be harassment of the for one month. Fine, if paid shall be
woman with a view to coerce her or made over to the parents of Roshani.
any person related to her to meet any
5 unlawful demand for any property or 18. The appeal is allowed
valuable security, the same would accordingly.
amount to cruelty. The case of the
prosecution being that the accused 45 Appeal allowed.
party had demanded television,
10 electric fan etc., let us see whether
there is reliable evidence to establish
the same. The learned trial court has
dealt with this matter in para 25 of
the judgment and it has been
15 observed that neither P.W. 5 nor
P.W.8 has stated about any of the
alleged demands and though P.W.1 50
deposed that Batholi and Kamla had
made illegal demands of electric fan
20 and television etc. from P.W. 4 Sant
Ram, the father of Roshani, the latter
did not say anything about the same.
The court, therefore, rightly
disbelieved this part of the
25 prosecution case. There is thus no
reliable evidence to hold that
55
Roshani was being harassed within
the meaning of Explanation (b) of
Sec. 498-A.

30 17. On the basis of the foregoing

discussion, we hold that the
prosecution failed to bring home the
offence either under Sec. 304-B or 60
against any of the respondents. The
35 only offence made out is under Sec.
324 against Batholi, for which
offence, as already stated, she would
pay a fine of RSec. 3,000 within a
period of two months from today, in

393