Police Must Explore Possibility Of Culpable Homicide Not Amounting To Murder Before Charging Offence U/s. 302 IPC: Apex Court

The Bench of Justice MM Sundresh and Justice Pankaj Mithal observed, “When a homicide happens, the Investigating Officer should explore the possibility of an offence punishable under Section 304 of the IPC before arriving at a conclusion that it is punishable under Section 302 of the IPC.”

AOR Ashwani Bhardwaj appeared for the Appellants, whereas AOR DL Chidananda appeared for the Respondent.

The appellants were convicted and charged for the offences punishable under Sections 302, 504 and 506, read with Section 34 of the IPC. The case of the prosecution was that Appellant No.1 made an objection to one Savya Nayak, PW 2, for washing the meat of a pig hunted from a nearby forest in a water tank situated opposite the house of the deceased’s father. There was a quarrel between the deceased and Appellant No.1. It happened in the presence of some of the prosecution witnesses. Thereafter, Appellant No.1 brought the other three accused, leading to a second quarrel. Appellant No.1 assaulted the deceased with a knife while the other three caught hold of his hands and legs. It was done in the presence of the eyewitnesses.

The Counsel for the appellants submitted that, even if one goes by the version of the prosecution, the case at hand would come under the offence punishable under Section 304 Part I of the IPC. He said although the prosecution has mentioned a story about a previous enmity, that was not the reason for the occurrence. If it were not for the quarrel, the occurrence would not have taken place. The case at hand would come within the purview of Section 299 of the IPC and, therefore, warrants a conviction and sentence under Section 304 Part I of the IPC.

The State submitted that it was Appellant No.1 who committed the offence. He said the same was confirmed not only by the evidence of the eyewitnesses but also by the serological report. The post-mortem report also indicates four injuries on the body of the deceased by a sharp weapon. He placed his reliance on the recovery of the weapon also provides credence to the said evidence placed before the Court. The findings leading to the conviction being concurrent, there is no need to interfere with the same, he added.

The Court said that there were two quarrels as per the prosecution, i.e. the first one took place when the other three accused were not present. PW2 brought the meat of a pig, which was objected to by Appellant No.1. There was a quarrel between Appellant No.1 and the deceased. It was only thereafter that Appellant No.1 brought the other three persons, the court said. Moreover, the intention to murder was not present at that point in time, as Appellant No.1 came to question PW2. There was a further quarrel between the parties.

The Court observed, “To put it differently, had the quarrel subsided, the occurrence would not have happened. It is only thereafter that Appellant No.1 attacked the deceased with a knife. The other three accused aided him. Even the post-mortem report indicates that the death was caused by the weapon recovered. Therefore, the other accused did not attack the deceased per se, although the rigour of Section 34 of the IPC has been attracted. We are conscious of the fact that Section 34 can be attracted even for an occurrence which happens immediately. However, the facts of the case would lead to the conclusion that, at best it would attract the offence punishable under Section 304 Part I of the IPC.”

Accordingly, the Court modified the conviction from one punishable under section 302 of the IPC to Section 304 Part I of the IPC.

Cause Title: Basya Nayak & Ors. v. The State of Karnataka

Appearances:

Appellants: AOR Ashwani Bhardwaj, Advocates Mary Scaria and Jasmine Kurian Giri.

Respondent: AOR DL Chidananda

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