Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:

"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion

upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC. Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

Mere recovery of blood stained weapon cannot be construed as proof for the murder

For proving the contents of memorandum prepared u/s.27 of Evidence Act, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court

    The direct implication of these two mandatory provisions is that a witness who steps into the witness box for proving a fact which he has seen or observed must give oral evidence to prove such fact. Manifestly, a memorandum prepared by the Investigating Officer under Section 27 of the Evidence Act refers to a fact which the Investigating Officer has seen and heard while interrogating the accused. Thus, for proving the contents of memorandum, the Investigating Officer must state the exact narration of facts in such document in his own words while deposing before the Court.

    This Court in the case of Dharma Vs. The State reported in AIR 1966 Raj 74 observed in paras 17 to 21 as under:

17. Now as regards the proving of such information, the matter seems to us to be governed by Sections 60, 159 and 160 of the Evidence Act. It is correct that statements and reports prepared outside the court cannot by themselves be accepted as primary or substantive evidence of the facts stated therein. Section 60 of the Evidence Act lays down that oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, and if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Section 159 then permits a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in the memory. Again, with the permission of the court, the witness may refresh, his memory by referring to a copy of such document. And the witness may even refer to any such writing made by any other person but which was read by him at the time the transaction was fresh in his memory and when he read it, he knew it to be correct. Section 160 then provides for cases where the witness has no independent recollection say, from lapse of memory, of the transaction to which he wants to testify by looking at the document and states that although he has no such recollection he is sure that the contents of the document were correctly recorded at the time they were. It seems to us that where a case of this character arises and the document itself has been tendered in evidence, the document becomes primary evidence in the case. See Jagan Nath v. Emperor, AIR 1932 Lah 7.

    The fundamental distinction between the two sections is that while under Section 159 it is the witness's memory or recollection which is evidence, the document itself not having been tendered in evidence; under Section 160, it is the document which is evidence of the facts contained in it. It has been further held that in order to bring a case under Section 160, though the witness should ordinarily affirm on oath that he does not recollect the facts mentioned in the document, the mere omission to say so will not make the document inadmissible provided the witness swears that he is sure that the facts are correctly recorded in the document itself. Thus in Partab Singh v. Emperor, AIR 1926 Lah 310 it was held that where the surrounding circumstances intervening between the recording of a statement and the trial would as a matter of normal human experience render it impossible for a police officer to recollect and reproduce the words used, his statement should be treated as if he had prefaced it by stating categorically that he could not remember what the deceased in that case had said to him. Putting the whole thing in somewhat different language, what was held was that Section 160 of the Act applies equally when the witness states in so many words that he has no independent recollection of the precise words used, or when it should stand established beyond doubt that that should be so as a matter of natural and necessary conclusion from the surrounding circumstances.

    18. Again, in Krishnama v. Emperor, AIR 1931 Mad 430 a Sub-Assistant Surgeon recorded the statement made by the deceased just before his death, which took place in April, 1930, and the former was called upon to give evidence some time in July, 1930. In the Sessions Court he just put in the recorded statement of the deceased which was admitted in evidence. On appeal it was objected that such statement was wrongly admitted inasmuch as the witness did not use it to refresh his memory nor did he attempt from recollection to reproduce the words used by the accused. It was held that he could not have been expected to reproduce the words of the deceased, and therefore, he was entitled to put in the document as a correct record of what the deponent had said at the time on the theory that the statement should be treated as if the witness had prefaced it by stating categorically that he could not remember what the deceased had said.

   19. Again in Public Prosecutor v. Venkatarama Naidu, AIR 1943 Mad 542, the question arose how the notes of a speech taken by a police officer be admitted in evidence. It was held that it was not necessary that the officer should be made to testify orally after referring to those notes. The police officer should describe his attendance, the making of the relevant speech and give a description of its nature so as to identify his presence there and his attention to what was going on, and that after that it was quite enough it he said "I wrote down that speech and this is what I took down," and if the prosecution had done that, they would be considered to have proved the words. This case refers to a decision of the Lahore High Court in Om Prakash v. Emperor, AIR 1930 Lah 867 wherein the contention was raised that the notes of a speech taken by a police officer were not admissible in evidence as he did not testify orally as to the speech and had not refreshed his memory under Section 159 of the Evidence Act from those notes. It was held that instead of deposing orally as to the speech made by the appellant, the police officer had put in the notes made by him, and that there would be no difference between this procedure and the police officer deposing orally after reference to those notes, and that for all practical purposes, that would be one and the same thing.

   20. The same view appears to us to have been taken in Emperor v. Balaram Das, AIR 1922 Cal 382 (2).

    21. From the discussion that we have made, we think that the correct legal position is somewhat like this. Normally, a police officer (or a Motbir) should reproduce the contents, of the statement made by the accused under Section 27 of the Evidence Act in Court by refreshing his memory under Section 159 of the Evidence Act from the memo earlier prepared thereof by him at the time the statement had been made to him or in his presence and which was recorded at the same time or soon after the making of it and that would be a perfectly unexceptionable way of proving such a statement. We do not think in this connection, however, that it would be correct to say that he can refer to the memo under Section 159 of the Evidence Act only if he establishes a case of lack of recollection and not otherwise. We further think that where the police officer swears that he does not remember the exact words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is reasonably established from the surrounding circumstances (chief of which would be the intervening time between the making of the statement and the recording of the witness's deposition at the trial) that it could hardly be expected in the natural course of human conduct that he could or would have a precise or dependable recollection of the same, then under Section 160 of the Evidence Act, it would be open to the witness to rely on the document itself and swear that the contents thereof are correct where he is sure that they are so and such a case would naturally arise where he happens to have recorded the statement himself or where it has been recorded by some one else but in his own presence, and in such a case the document itself would be acceptable substantive evidence of the facts contained therein. With respect, we should further make it clear that in so far as Chhangani, J.'s holds to the contrary, we are unable to accept it as laying down the correct law. We hold accordingly."

When an offence is committed in secrecy inside a house, then a corresponding burden will be on the inmates of the house to give a cogent explanation as to how the crime was committed

In the instant case, the appellant does not deny her presence at the scene of crime (the house where deceased and accused lived). Except the appellant and her child, no other persons were present at the scene of crime and she was the inmate of the house where the offence is committed in secrecy inside the house. The initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by prosecution to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively lighter in character. In view of Section 106 of Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how crime was committed.[Para No.26]

    As observed herein above, appellant being the only inmate of the house, did not offer any explanation as to how the incident took place. Further she has not explained in her statement recorded under Section 313 of Cr.P.C the circumstances in which deceased had sustained injuries except denying every question by answering 'do not know' or 'false'. It is the duty of the accused to furnish an explanation in her statement recorded under Section 313 Cr.P.C. regarding incriminating material that has been produced against her. Accused has been given freedom to remain silent during the investigation, as well as before the Court, then, the appellant/accused may choose to maintain silence or even deny entire prosecution case. In the present case, as observed above, the appellant in her statement under Section 313 Cr.P.C except saying 'false' and 'do not know', has not explained how the incident took place or who had committed the offence (if known) or the reason for her husband sustaining head injury and lying in a pool of blood. In such circumstances, we will have to draw an adverse inference against the appellant for not furnishing the explanation in her statement recorded under Section 313 of Cr.P.C.[Para no.27]

   Where an accused is alleged to have committed the murder of her husband and the prosecution succeeded in leading the evidence to show that shortly before the commission of crime, they were seen together and the offence had taken place in the house where husband and wife normally resides, then, it is for the accused to explain. For this proposition, we place reliance on the judgment of the Apex Court in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA reported in (2006) 10 SCC 681 wherein it came to be held:

Bail can not be refused on the ground of seriousness of offence and criminal antecedent alone

Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29 th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.

    Learned Counsel for the State of Uttar Pradesh supported the appellant’s stand. Mr. C.A. Sundram, learned senior counsel for the accused contested the present appeal. His main argument is that the statement of Narendra Dev Upadhyay, on which reliance was placed by the prosecution and the appellant was recorded after fifty days from the date of occurrence of the incident. On the question of granting bail, Mr. Sundram has argued, such a statement was unreliable. He has also submitted that even as per the F.I.R. or the witness statements recorded under Section 161 of the Code of Criminal Procedure, 1973, his client was not named as having participated in the act of assault or being present at the place of occurrence while the assault took place.[Para No.4]

    On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.[Para No.7]

Information recorded u/s.27 of Evidence Act by a Police Officer which is confessional in nature, is not admissible in evidence

The learned trial court arrived at a conclusion of guilt of the accused appellant primarily on the basis of three circumstances. The first conclusion of the trial court was based on the so-called evidence of disclosure i.e., the accused gave an information to the I.O. under Section 27 of the Indian Evidence Act and led him to the place where he had allegedly strangled Smt. Mohini. In this regard, it is a settled proposition of law that such part of information of the accused recorded by a Police Officer which is confessional in nature, cannot be proved and as a consequence, is not admissible in evidence.

Manifestly, the inculpating part of the information (Ex.P/14) wherein, the accused allegedly admitted to have killed Smt. Mohini is totally inadmissible because the same would be hit by Section 25 of the Evidence Act. It may be stated here that the Site Inspection Plan (Ex.P/8) which the I.O. prepared on the basis of the information provided by the accused, records that a cot was lying at point 'X' in a room where Sheshkaran Dan admitted to have murdered his wife Smt. Mohini. Manifestly, the confession of the accused as is recorded in this document, is totally inadmissible and has to be excluded from consideration. The remaining part of the document, simply records presence of a cot at mark 'X' in the room. Obviously, when the husband and wife were living together in the house, presence of a cot in their room was but natural. Therefore, the conclusion drawn by the trial court in the impugned Judgment that the disclosure made by the accused pointing out the cot where he allegedly murdered Smt. Mohini was incriminating in nature, is absolutely baseless and frivolous.[Para No.9]

Intention of accused can be gathered from the fact whether the weapon was carried by the accused or was picked up from the spot

The conspectus of the decisions can summarised thus:

The offence to fall within Exception 4 of section 300 of The Indian Penal Code 1860 following ingredients must be fulfilled Viz.(i) that the act was committed without premeditation; ( ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.[Para No.22]

    The intention to cause death as contemplated by thirdly of Section 300 of The Indian Penal Code 1860 can be gathered from following factors:

(i) nature of the weapon used;

(ii) whether the weapon was carried by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows.[Para No.23]

Insurance company is not liable to pay compensation for death of third party if vehicle is used as a weapon to murder by crushing down

Whether the brutal killing of two persons by the 7 th Respondent/Driver (who has been found guilty of murder under Section 302 IPC and has been convicted and sentenced to life imprisonment by the Trial Court) using the Truck as a weapon and crushing them down, could be treated as an 'accident' or as 'out of the use of a motor vehicle' so as to award compensation to the legal representatives of the deceased, on the strength of a policy issued by the Appellant-Insurer? The finding of the Tribunal that the said incident is an accident and the Appellant/Insurer is liable to pay the compensation, is put to challenge in these appeals.[Para No.1]

    Coming to the scope for payment of compensation under the MV Act and the coverage of third party risk, Chapter XI has been provided for insurance of the motor vehicles against the third party risk. Section 146 speaks about the necessity for insurance against third party risk to the effect that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the said Chapter. The requirements of policy and limits of liability have been mentioned under Section 147 of the MV Act; whereas the duty of the insurers to satisfy judgments against persons insured in respect of third party risk has been dealt with under Section 149 of the MV Act.[Para No.11]

    As mentioned already, on occurrence of an accident involving use of a motor vehicle, compensation can be claimed either under Section 163A of the MV Act on the basis of a structured formula (where it is not necessary for the Claimants to plead or prove negligence on the part of the Driver or the Owner) or under Section 166 of the MV Act by proving the negligence on the part of the Driver of the offending vehicle. It is quite possible that in a given case, 'murder' can be an 'accident'. If only it amounts to an 'accident', can it lead to a claim petition, to be filed by the Claimants, seeking compensation in respect of such accident because of the use of the motor vehicle either under Section 163A or under Section 166 of the MV Act. The Claims Tribunal envisaged under Section 165 of the MV Act names the Tribunal as 'Motor Accidents Claims Tribunal' and if it is not an accident, no such claim can be held as maintainable, to be entertained by the Tribunal.[Para No.12]

    The question whether a murder can be an accident in a given case had come up for consideration before the Apex Court in Rita Devi (supra). It was a case where some unknown passengers hired an Autorickshaw from an autostand at Dimapur and later, the vehicle was reported stolen and the dead body of the Driver was recovered by the Police on the next day. The Autorickshaw was never recovered and the claim of the owner for the loss of Autorickshaw was considered and sanctioned by the Insurer, satisfying the amount for which it was settled. A claim petition was filed by the legal representatives of the deceased Driver under Section 163A of the MV Act, claiming compensation for the death as having arisen out of and in the course of his employment. The Tribunal held that it was caused by 'accident' coming within the purview of the MV Act and the owner and the Insurer were liable. The Insurance Company took up the matter before the High Court where it was held that there was no motor accident as contemplated under the MV Act and that it was an act of murder. Accordingly, the appeal was allowed and the award passed by the Tribunal was set aside. This led to the proceedings before the Apex Court where the question was subjected to a threadbare analysis; particularly on the point of 'dominant intention'. The Apex Court observed that there are instances where murder can be by accident on a given set of facts and that the difference between a murder 'which is not an accident' and a murder 'which is an accident' depends upon the proximity of the cause of murder. The Apex Court held that if the 'dominant intention' of the act of felony is to kill any particular person, then such killing is not an accidental murder but a 'murder simplicitor'; whereas, in a case where act of murder was originally not intended and the same was caused in furtherance of any other felonious act, then such murder is an 'accidental murder'.[Para No.13]

Distinction between Murder, Culpable Homicide and Culpable Homicide Not Amounting to Murder

In State of AP vs Rayavarapu Punnayya, AIR 1977 SC 45, the Supreme Court made following observation:

   " .... whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of "murder"contained in section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder" punishable under the first or the second part of section 304, depending, respectively,on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in section 300, the offence would still be "culpable homicide not amounting to murder," punishable under the first part of section 304, Penal Code."