[2006 (2) T.N.L.R. 113 (SC)]
S.B. SINHA AND P.P. NAOLEKAR, JJ.
SAHEBRAO AND ANOTHER …Appellants
STATE OF MAHARASHTRA …Respondent
[Criminal Appeal No. 1507 of 2005, decided on 3rd May, 2006]
Indian Penal Code 1860—Sections 306 and 498-A—Offence thereunder—
Conviction and sentence—Appellants tried on charge under Section 304-B and 498-A,
IPC, were convicted under Section 306 and 498-A, IPC and sentenced to undergo
imprisonment for three years—Deceased married to appellant committed suicide by
poisoning on 8.9.1990—FIR was lodged on 9.9.1990—Mere delay in lodging FIR would
not be ground to doubt prosecution case—No apparent reason to falsely implicate
accused—Evidences as to harassing deceased continuously on demand of money and
two-in-one established—Reluctance by deceased to go her matrimonial home within
short period of marriage would support the case—No plausible, reasonable and
trustworthy explanation to rebut presumption—On facts and circumstances,
conviction not to be interfered.
(Paras, 8, 10,13,14,&16)
Case law:—2001 (6) SCC 71 : (2001) 7 SCC 690 : 2003 (2) SCC 518 : (1998) 3 SCC
309 : (2002) 2 SCC 619 : (2002) 7 SCC 414 : (2001) 9 SCC 618 : (2004) 12 SCC 257—
Counsel:—Sudhanshu Choudhary, Naresh Kumar, Advocates, for the appellant V.N.
Raghupathy, Advocate, for the respondent.
P.P. NAOLEKAR, J,—The accused appellants Sahebrao (A-1) and Bhausaheb (A-2)
were tried along with their mother Shanti Bai (A-3) for committing offences under Sections
304-B and 498-A of the Indian Penal Code (IPC). The judgment dated 06.06.1992 by the
Additional Sessions Judge, Aurangabad found A-1 and A-2 guilty under Sections 306 and
498-A, IPC and sentenced them to undergo rigorous imprisonment for three years and fine of
Rs. 500/- each, in default, rigorous imprisonment for three months under Section 306, IPC.
No separate sentence was passed under Section 498-A, IPC. A-3 was acquitted. Being
aggrieved by the judgment of the Trial Court, the accused appellants filed an appeal before
Aurangabad Bench of the Bombay High Court. The High Court by its order dated 31.01.2005
dismissed the appeal and confirmed the sentence passed by the trial Court. That is how the
appellants are before us in this appeal.
2. The relevant facts deduced from the evidence are that the marriage of accused-
appellant A-2, resident of Village Babulkheda, and deceased-Sangita, daughter of the
complainant-Ramrao Laxman Darekar (PW-1), took place on 13.05.1990 at Village Pathri.
The distance between Village Pathri and Babulkheda was 15 Kms. Just after the marriage, A-
2 insisted for a tape recorder. PW-1 persuaded that the tape recorder would be given to him in
due course of time. Three days after the marriage, the elder son of PW-1, Sudam (PW-3)
along with his maternal uncle, Karbhari Vithal Jadavh (PW-4) went to village Babulkheda to
take the deceased back to Village Pathri. On return, PW-3 told his father PW-1 that elder
brother of A-2, accused-appellant Sahebrao (A-1) was demanding additional dowry amount
of Rs. 10,000/- as the dowry paid at the time of marriage was not as per their status and A-2
was insisting for a tape recorder. The deceased stayed with her father for 5-6 days and
thereafter, Ambadas on return told PW-1 that A-1 was demanding Rs. 10,000/- and A-2 was
insisting for a tape recorder. About 2-3 days later, PW-1 went to his daughter’s matrimonial
home. She told him that A-1 and A-2 were troubling her for an amount of Rs. 10,000/- and a
tape recorder. PW-1 though expressed his inability to pay the amount, sent PW-3 to
Aurangabad for purchasing the tape recorder. After 5-6 days, PW-3 and PW-4 went to the
matrimonial home of Sangita, gave the tape recorder to the accused persons and took her to
her parent’s place at Village Pathri. After a week, Mansub-younger brother of A-2, came to
the house of PW-1 to take her back to Village Babulkheda and informed him that A-1 had
demanded an amount of Rs. 10,000/- and the deceased would not accompany him unless the
amount is given. He also informed PW-1 that A-1 would get angry if the amount was not
paid. PW-1 somehow managed to send the deceased to her matrimonial home along with
Mansub. In the month of ‘Jaistha’, when PW-1 went to see his daughter, accused persons
started questioning him as to why he had not paid the amount and asked him to take his
daughter back. The deceased was taken back by PW-1 and she stayed at her maiden home for
a month. Mansub, once again came to take her back to the matrimonial home. This time also,
Mansub, demanded the additional dowry of Rs. 10,000/-. In September 1990 the deceased
came back to her father’s place and on reaching there she started weeping loudly and told
PW-1 and her mother that she was beaten by the accused persons and pointed out the marks
of beating on her back and requested PW-1 not to send her back to Village Babulkheda.
However, in the hope that situation would improve, PW-1 left his reluctant daughter to the
matrimonial home on 06.09.1990. That time also A-2 told him that since the amount was not
given PW-1 should take back his daughter. While returning back to his village on
07.09.1990, the deceased daughter met him on the way and told him that it would be very
difficult for her to stay and also that he might not see her again.
3. On 08.09.1990, the cousin brother of A-2 informed PW-1 that his daughter was ill.
PW-1 along with others, went to the house of the accused persons at about 1.00 p.m. There
he saw his daughter dead and no one from the family of her in-laws was present in the house.
On receipt of the information of the incident, the police registered a case of accidental death.
The police made inquiry from PW-1 but he told them that his mental condition is not good
and that he would lodge the complaint afterwards. PW-1 lodged the complaint against the
accused appellants on 09.09.1990 at 7.30 p.m., giving the detailed narration of facts.
4. Dr. Milind Kulkarni, who conducted post-mortem over the dead body of the
deceased, opined that the cause of death was “cardio respiratory failure due to Endosalphan
5. Learned counsel for the appellants has urged that the delay in filing the First
Information Report (FIR) is fatal to the case of prosecution. PW-1 came to know about the
death at about 1.00 p.m. on 08.09.1990, yet the complaint was made on 09.09.1990 at 7.30
p.m. It indicates false implication of the accused appellants.
6. The settled principle of law of this Court is that delay in filing FIR by itself cannot
be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would
put the Court on its guard to search if any plausible explanation has been offered and if
offered whether it is satisfactory.
7. At this juncture, we would like to quote the following passage from State of
Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71, wherein this Court observed:
“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting
the prosecution case and discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect of putting the Court on
its guard to search if any plausible explanation has been offered for the delay,
and if offered, whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is a possibility of embellishment in the
prosecution version on account of such delay, the delay would be fatal to the
prosecution. However, if the delay is explained to the satisfaction of the Court,
the delay cannot by itself be a ground for disbelieving and discarding the entire
In Ravinder Kumar and Another v. State of Punjab, (2001) 7 SCC 690, this Court
“When there is criticism on the ground that FIR in a case was delayed the
Court has to look at the reason why there was such a delay. There can be a
variety of genuine causes for FIR lodgment to get delayed. Rural people might
be ignorant of the need for informing the police of a crime without any lapse of
time. This kind of unconversantness is not too uncommon among urban people
also. They might not immediately think of going to the police station. Another
possibility is due to lack to adequate transport facilities for the informers to
reach the police station. The third, which is a quite common bearing, is that the
kith and kin of the deceased might take some appreciable time to regain a certain
level of tranquility of mind or sedativeness of temper for moving to the police
station for the purpose of furnishing the requisite information. Yet another cause
is, the persons who are supposed to give such information themselves could be
so physically impaired that the police had to reach them on getting some
nebulous information about the incident.”
We are not providing an exhausting catalogue of instances which could cause delay
in lodging the FIR. Our effort is to try to point out that the state demand made in the criminal
courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be
approved as a legal corollary. In any case, where there is delay in making the FIR the Court is
to look at the cause for it and if such causes are not attributable to any effort to concoct a
version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zohoor
v. State of U.P., 1991 Supp. (1) SCC 372; Tara Singh v. State of Punjab, 1991 Supp. (1) SCC
536; Jamna v. State of U.P., 1994 Supp. (1) SCC 185. In Tara Singh, the Court made the
following observations: (SCC p. 541, para 4)
“4. It is well settled that the delay in giving the FIR by itself cannot be a ground
to doubt the prosecution case, knowing the Indian conditions as they are we
cannot expect these villagers to rush to the police station immediately after the
occurrence. Human nature as it is, the kith and kin who have witnessed the
occurrence cannot be expected to act mechanically with all the promptitude in
giving the report to the police. At times being grief-stricken because of the
calamity it may not immediately occur to them that they should give a report.
After all it is but natural in these circumstances for them to take some time to go
to the police station for giving the report.”
In Amar Singh v. Balwinder Singh & Ors, (2003) 2 SCC 518, this Court held that:
“…..There is no hard and fast rule that any delay in lodging the FIR would
automatically render the prosecution case doubtful. It necessarily depends upon
facts and circumstances of each case whether there has been any such delay in
lodging the FIR which may cast doubt about the veracity of the prosecution case
and for this a host of circumstances like the condition of the first informant, the
nature of injuries sustained, the number of victims, the efforts made to provide
medical aid to them, the distance of the hospital and the police station, etc. have
to be taken into consideration. There is no mathematical formula by which an
inference may be drawn either way merely on account of delay in lodging of the
8. It has come in evidence that when the father reached Village Babulkheda at about
1.00 p.m. on 08.09.1990 he found his daughter dead and nobody was present in the house.
When the police came and made inquiries he said that he was shocked and was not mentally
fit to lodge the complaint and would do so later on. After finding her newly wedded
daughter’s dead body in her matrimonial home where he had left her just before a day of
incident, it was very natural for a father to lose his tranquility of mind. Hence if such grief-
stricken father had told the police that he would give the complaint afterwards, it was not
unnatural or unusual. PW-6, who was posted at Shivoor Police Station, had also deposed
about the fact that when the father was asked about the incident he had stated that he would
lodge the complaint later on as he was disturbed. Two Courts below have found the
explanation given by the prosecution to be satisfactory and sufficient for a delay in
9. There does not appear to be any reason to falsely implicate the accused-appellants
into the commission of crime. There is no allegation made in the complaint that her daughter
was done to death by the appellants. The complaint contains the narration of facts and
harassment during the period of marriage which took place on 13.05.1990 and death of his
daughter which took place on 08.09.1990, from which an inference can be drawn for the
commission of the offence by the accused appellants who were allegedly consistently
pestering for bringing money.
10. In the circumstances, we do not find that simply because the FIR was lodged with
some delay, the allegations in the FIR are unworthy of credence or that PW-1 has falsely
implicated the accused appellants in the commission of crime.
11. It is then submitted by Shri Sudhanshu Choudhary, learned counsel for the
appellants that the prosecution witnesses have only made general allegations against the
accused and there are no specification as to what kind of ill-treatment or trouble was meted
out to the deceased which led her to commit suicide. It would also be submitted that there can
be no question of cruelty towards the deceased in the period of four months of her married
life as she was in her in-laws place hardly for about two months only, and further, conviction
cannot be based solely on the basis of the evidence of the interested witnesses.
12. In Pawan Kumar and Others v. State of Haryana, (1998) 3 SCC 309, this Court
“….cruelty or harassment need not be physical. Even mental torture in a given
case would be a case of cruelty and harassment within the meaning of Sections
304-B and 498-A, IPC. Explanation (a) to Section 498-A itself refers to both
mental and physical cruelty…..Again wilful conduct means, conduct willfully
done; this may be inferred by direct to indirect evidence which could be
construed to be such…A girl dreams of great days ahead with hope and
aspiration when entering into a marriage, and if from the very next day the
husband starts taunting her for not bringing dowry and calling her ugly, there
cannot be greater mental torture, harassment or cruelty for bride….”
In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, this Court specifically
“The concept of cruelty and its effect varies from individual to individual, also
depending upon the social and economic status to which such person belongs.
“Cruelty” for the purposes of constituting the offence under the aforesaid
section need not be physical. Even mental torture or abnormal behaviour may
amount to cruelty and harassment in a given case.”
In Mohd. Hoshan and Another v. State of A.P., (2002) 7 SCC 414, it was pointed out
“….The impact of complaints, accusations or taunts on a person amounting to
cruelty depends on various factors like the sensitivity of the individuals victim
concerned, the social background, the environment, education etc. Further
mental cruelty varies from person to person depending on the intensity of
sensitivity and the degree of courage or endurance to withstand such mental
13. The complainant (PW-1) has deposed that soon after the performance of marriage,
A-2 demanded a tape recorder. This statement is corroborated by PW-3 and PW-4. PW-3 has
deposed that when PW-4 along with him went to Village Babulkheda 2-3 days after marriage
of his sister, A-1 demanded an additional amount of Rs. 10,000/- and A-2 demanded a tape-
recorder. This found support from the statements of PW-1 and PW-4 without any variation.
Further PW-1 in his evidence has specifically said that deceased had told him that the
accused persons on account of the non-fulfilment of their demands, troubled her. There is
evidence on record of PW-1 that when his daughter came back to his place she started
weeping and told the complainant about the harassment inflicted upon her on account of non-
payment of Rs. 10,000/-. This found support in the statements of PW-3 and PW-4. The
evidence shows that even the demand was made through the younger brother Mansub when
he went to the place of the complainant. PW-1 has further mentioned that in the end of
jaishth month, he went to village Babulkheda to see his daughter and was insulted by the
accused persons for not fulfilling their demand and they asked him to take her back to village
Pathri. It is said by PW-1 that just 8 days before the incident when the deceased last visited
her maiden home she told him that she was beaten and also showed marks of beating on her
body. She was weeping and requested him not to send her back to village Babulkheda
without satisfying the demand of the accused persons. The evidence clearly establishes that
the accused persons were consistent in their demand regarding additional amount of Rs.
10,000/- even after their initial demand of tape recorder was fulfilled. The evidence clearly
establishes that the deceased was harassed at her matrimonial home and her staying there had
become miserable. The deceased on several occasions, within a short span of four months of
her marriage, informed her father that she was being troubled by her husband and his elder
brother. They also insulted and taunted her father in her presence and asked PW-1 to take her
back to his home for his inability to fulfil their unlawful demand. The reluctance shown by
the deceased to go to her matrimonial home within a short period of her marriage is
indicative of the fact of the treatment given to her. At her matrimonial home, she was
harassed and constantly nagged for non-payment of additional amount by her father. The
facts clearly establish that husband and his elder brother subjected the deceased to cruelty and
their conviction under Section 498-A, IPC is based on cogent reliable evidence.
14. The appellants were also convicted under Section 306, IPC with the aid of the
presumption as to the abetment of suicide by a married woman under Section 113-A of the
Indian Evidence Act, 1872. It is proved by the prosecution that Sangita committed suicide
within a period of seven years from the date of her marriage and that her husband and his
elder brother subjected her to cruelty. On the basis of the evidence, it can be said that the
cruel treatment meted out to the deceased was of such nature that it has driven the lady to
15. In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (para 22), this Court
held as under :
“Sections 498-A and 306, IPC are independent and constitute different offences.
Though, depending on the facts and circumstances of an individual case,
subjecting a woman to cruelty may amount to an offence under Section 498-A
and may also, if a course of conduct amounting to cruelty is established leaving
no other option for the woman except to commit suicide, amount to abetment to
Similarly, in Hans Raj v. State of Haryana, (2004) 12 SCC 257 (in para 13), this Court
opined that :
“…. Under Section 113-A of the Indian Evidence Act, the Prosecution has first
to establish that the woman concerned committed suicide within a period of
seven years from the date of her marriage and that her husband (in this case) had
subjected her to cruelty. Even if these facts are established the Court is not
bound to presume that the suicide had been abetted by her husband. Section 113-
A gives discretion to the Court to raise such a presumption, having regard to all
the other circumstances of the case, which means that where the allegation is of
cruelty it must consider the nature of cruelty to which the woman was subjected,
having regard to the meaning of the word “cruelty” in Section 498-A IPC. The
mere fact that a woman committed suicide within seven years of her marriage
and that she had been subjected to cruelty by her husband, does not
automatically give rise to the presumption that the suicide had been abetted by
her husband. The Court is required to look into all the other circumstances of the
case. One of the circumstances which has to be considered by the Court is
whether the alleged cruelty was of such nature as was likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health of the
16. Neither any evidence was led by the defence no from the evidence placed on
record by the prosecution, we can draw a plausible, reasonable and trustworthy explanation
to rebut the presumption under Section 113-A of the Evidence Act. The prosecution has
sufficiently proved by cogent evidence that the accused-appellants by series of acts and
conduct created such a difficult and hostile environment for the deceased that she was
compelled to commit suicide. In the light of the discussion in regard to the cruelty committed
by the accused persons to the deceased under Section 498-A, IPC there is a direct and
reasonable nexus with the commission of suicide by the deceased with the act of cruelty to
which the deceased was subjected to by the accused-appellants.
17. For the aforesaid reasons, we are of the view that the High Court has rightly upheld
the conviction of the accused-appellants under Section 306 and Section 498-A, IPC and we
do not find any good or sufficient reason to take a different view of the matter. The appeal is,
[2006 (2) T.N.L.R. 121 (AP)]
ANDHRA PRADESH HIGH COURT
P.S. NARAYANA. J.
PIDIKETI ANAND RAJU MOHAN AND ANOTHER …….Petitioners
STATE OF A.P. AND ANOTHER ….Respondents
[Criminal Petition No. 133 of 2003, decided on 15th February, 2006.]
Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code,
1973—Section 482—Quashing of complaint—Filed against dishonour of cheque—
Petitioners claimed that they were not Directors on the date of issue of cheque—Hence
cannot be held liable for—Such factual controversies could be decided at appropriate
stage—Complaint cannot be quashed.
Case law: —AIR 2006 Ker 284 : AIR 2004 SC 4087: 2004 Cri LJ 3866— referred.
Counsel: —Chaitanya, for Petitioners; Public Prosecutor (for No. 1) and C.
Kodandaram (for No. 2), for respondents.
P.S. NARAYANA, J.— Heard both the Counsel.
2. The petitioners are accused Nos. 6 and 8 in C.C. No. 1394/2001 on the file of V.
Metropolitan Magistrate, Hyderabad.
3. The complaint was filed under Section 138 of the Negotiable Instruments,
Act, 1881 in short hereinafter referred to as Act” for the purpose of convenience.
4. Sri K. Chaitanya, the learned counsel representing the petitioners raised two
contentions, one relating to maintainability of the complaint by the power of attorney and yet
another ground that these petitioners/A-6 and A-8 were not the Directors on the date of
issuance of the cheques but were inducted as Directors on a subsequent date and hence they
cannot be fastened with liability. The learned Counsel in all fairness would contend that he is
not seriously canvassing the first contention relating to the maintainability of the complaint
by a power of attorney, but however would maintain that on the second ground inasmuch as
the petitioners cannot be fastened with the liability since they became the Directors at a
subsequent point of time, the proceedings may have to be quashed.
5. Per contra, Sri Gunaranjan, the learned counsel representing the 2 nd respondent
would maintain that inasmuch as on the date cheques were dishonoured, the petitioners/A-6
and A-8 also were the Directors at the relevant point of time, they are liable to pay the
amount and the date of dishonour of the cheques may have to be taken into consideration.
6. The learned Additional Public Prosecutor Sri Dhanamjaya however would contend
that even otherwise there is a specific averment made that the petitioners /A-6 and A-8 also
are responsible to the day to day affairs of the Company and whether the subsequent
induction of these petitioners/A-6 and A-8 would alter the situation in any way in fastening
the liability may have to be decided at the appropriate stage and this is not a fit case to be
interfered with under Section 482 of the Code of Criminal Procedure.
7. On a careful consideration of several facts which had been averred in paras 3 and 4
of the complaint and also in the light of the submissions made by the counsel on record, this
Court is thoroughly satisfied that these are all factual controversies which may have to be
decided at the appropriate stage. It is needless to say that the question whether the
petitioners/A-6 and A-8 also can be found guilty of an offence under Section 138 of the Act
inasmuch as they were not the Directors at the time of issuance of cheques but were inducted
as Directors subsequent thereto but they were Directors on the date when the cheques were
dishonoured, also may have to be gone into only no adduction of evidence by the parties at
the appropriate stage. In Ravi Kumar v. Ananth, 2006 (1) KLJ 581 : (2006 (2) AIR Kar R
284) the learned Judge of Karnataka High Court while dealing with the scope and ambit of
Section 482 of the Code of Criminal Procedure held that Section 482 of the Code aforesaid
the Court cannot decide upon the truth or falsity of the case that is pending before the
Magistrate and it is for the trial Court to examine all these aspects and since the case on hand
does not fall within the circumstances under which the Court can exercise its inherent
powers, this is not a fit case to exercise the said power to quash the complaint or the
proceedings pending before the Magistrate or for that matter, the order passed by the learned
Sessions Judge. In State of Punjab v. Kasturilal, AIR 2004 SC 4087 : (204 Cri LJ 3866, para
10) it was observed by the Apex Court.
“Exercise of power under Section 482 of the Code is the exception and not the
rule. The section does not confer any new powers on the High Court. It only
saves the inherent power which the Court possessed before the enactment of the
Code. It envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to any order under the Code; (ii) to
prevent abuse of the process of Court; and (iii) to otherwise secure the ends of
justice. Inherent jurisdiction under the section though wide has to be exercised
sparingly carefully and with caution and only when such exercise is justified by
the tests specifically laid down in the section itself. It is to be exercised ex debito
justitia to do real and substantial justice for the administration of which alone
Hence, this Court is not inclined to interfere at this stage and accordingly the Criminal
Petition shall stand dismissed. It is needless to say that the petitioners are at liberty to urge all
the grounds inclusive of the grounds which had been referred to supra before the trial Court.
8. It is brought to the notice of this Court that certain of the accused are abroad and the
petitioners/A-6 and A-8 are available in India.
9. In view of the peculiar facts, the learned Magistrate is at liberty to consider the
splitting up of the case and to proceed further with the further proceedings as against the
petitioners/A-6 and A-8.
[2006 (2) T.N.L.R. 123 (SC)]
Y.K. SABHARWAL AND P.P. NAOLEKAR, JJ.
STATE OF M.P. ....Appellant
[Criminal Appeal No. 498 of 2005, decided on 1st April, 2005]
Indian Penal Code, 1860—Section 376—Offence of rape—Sentence—Reduction
of—Session Court imposed 10 years of sentence—Reduced to four years and eight
months period already under gone by High Court in appeal because accused was an
illiterate labour from rural area—Reasons recorded by High Court not adequate—
Hence, impugned judgment of High Court set aside. (Paras 3 & 4)
Y. K. SABHARWAL AND P.P. NAOLEKAR, JJ.—Leave granted.
2. The respondent was convicted for offences under Section 376 (1), 342 and 506 of
the India Penal Code. For the offence punishable under Section 376 (1), IPC, he was
sentences for a period of ten years. Lesser punishments were inflicted for other offences. In
appeal against the order of conviction and sentence, the sentence awarded has been reduced
to the period already undergone, namely, four years, and eight months, insofar as the offence
of rape under Section 376 (1), IPC is concerned. The only reason given is that the accused is
an illiterate labourer from rural area and, therefore, sentence of imprisonment deserves to be
reduced to the period already undergone.
3. We are unable to sustain the view of learned Single Judge of the High Court,
acceptance whereof means that for a heinous crime like rape, there are different standards for
illiterate labourers from rural areas. That cannot be the position in law. Having regard to the
severity of the offence, Section 376 (1), IPC provides for a minimum sentence of seven years,
and adequate and special reasons are required to be recorded in the judgment for imposing
lesser punishments. By no stretch of imagination, the reasons recorded by the learned Single
Judge in the impugned judgment and order can be held to be adequate and special reasons
within the meaning of Section 376 (1), IPC. The Sessions Court, on consideration of the
matter, had imposed sentence of ten years. Nothing has been shown so as to justify the
reduction of sentence.
4. In this view, we set aside the impugned judgment and order of the High Court and
restore that of the Sessions Court. The appeal is accordingly allowed. The respondent shall be
taken into custody to serve out the remaining period of sentence.
[2006 (2) T.N.L.R. 125 (SC)]
S. B. SINHA AND P. P. NAOLEKAR, JJ.
STATE OF M.P. …Respondent
[Criminal Appeal No 791 of 1998, decided on 12th May 2006]
Indian Penal Code, 1860—Sections 366 and 506-B—Abduction—Conviction and
sentence—Prosecutrix a married woman for 10 years abducted from her house in the
night—FIR lodged by her husband that she was abducted when she had gone to attend
call of nature but prosecutrix stated that accused entered her house while she was with
her husband and taken away by accused, when her husband had woke up—Delay of
three months in lodging FIR as well no proof of abduction with intention to compel her
to marry accused or reduced to illicit intercourse—Appellant not to be convicted.
(Paras 10 to 14)
Counsel: —Anis Ahmed Khan, Advocate for the Appellant Ms. Vibha Datta Makhija,
Advocate for the Respondent.
P. P. NAOLEKAR, J. —Accused appellant Gabbu was tried for committing offences
under Section 366 read with Section 34 and under Section 506-B of the Indian Penal Code
(IPC) along with Sheru who was charged under Sections 366, 376 and 506-B, IPC and
Sardar charged under Sections 368 and 506-B IPC. The Session Court convicted the accused-
appellant under Sections 366 and 506-B, IPC and respectively sentenced him to undergo two
years rigorous imprisonment with fine of Rs. 500/- and one year rigorous imprisonment with
fine of Rs. 500/-, and in default of the payment of fine simple imprisonment for two months
was awarded. Accused Sheru was convicted under Section 366 and 376, IPC and the third
accused Sardar was acquitted. The High Court in appeals preferred by the accused appellant
and the other accused Sheru, confirmed the order of the Session Court. Feeling
aggrieved by the order of conviction and sentence, accused-appellant Gabbu has preferred
this appeal by special leave. The other accused Sheru has not filed any appeal and order of
conviction and sentence against him has attained finality.
2. As per the prosecution case, complainant Bisan Singh, the husband of prosecutrix,
and the prosecutrix were labourers and residing behind the Technical School; Dhar. On
the night of 25.7.1992 when the complainant was sleeping in his house, his wife Sita Bai
went out of the house to attend the call of nature and there the accused-appellant along with
accused Sher Singh alias sheru at point of a weapon gave her threats and abducted her
against her wishes. The complainant kept on searching his wife and he went to the house of
accused Sheru at Brahmakundi and came to know that the accused was missing since last
night. He made search at other places also but could not find her. He narrated the story to
different persons who told him that the accused had taken away his wife somewhere else. The
report was lodged on 26.7.1992 at the Police Station, Dhar, but the same was not registered
3. As per the prosecution version, when the prosecutrix went to the attend the call of
nature she was threatened by the accused appellant by showing a knife and the other accused
put an hand on her mouth and they abducted her. The accused-appellant accompanied the
prosecutrix and the other accused upto the place called Gunabad. Thereafter, the other
accused took the prosecutrix away to Ghata village by truck and thereafter to Bhanwar Kuan,
Indore in a motor. Thereafter, she was taken to village Nibhodi where she was allegedly kept
in the house of the acquitted accused who was a distant relative of the other accused Sheru.
She was sexually exploited and raped by the other accused at that place. The prosecutrix
escaped from Nibhodi and reached her maternal uncle’s place and narrated incident to him
and her husband. A report to the Superintendent of Police regarding this incident was given
and the case was registered against the accused persons on 22.10.1992.
4. In this appeal, we are concerned with the case of accused Gabbu, only who has been
convicted under Sections 366 and 506-B, IPC. So far as this accused is concerned, the
Session Court found that accused Gabbu and Sheru came to the house of prosecutrix in the
evening of the day of incident when her husband was not there. They said to the prosecutrix
that as no child was born to her they would administer some medicine to her so that she
would become pregnant and accordingly applied some medicine on the hand of the
prosecutrix. She raised alarm and later informed her husband about the application of
medicine by the other accused who was accompanied by the accused-appellant, thereafter she
was abducted by the accused at night. The Session Court further recorded a finding that the
prosecutrix in her statement clearly stated that accused Sheru and Gabbu entered in her house
at night and accused Gabbu showed knife to her and Sheru put his hand on her mouth and
brought her upto Gunabad, the statement of the prosecutrix that she was abducted by Gabbu
cannot be disbelieved. So far as Section 506-B, IPC is concerned, the Session Court held that
accused-appellant Gabbu pointed knife at her person and threatened to kill her and on the
basis of her evidence, the charge is proved.
5. The High Court held that nothing is brought in the cross-examination of the
prosecutrix whereby the story of the incident narrated by her, should not be believed. The
story given by her is tell-tales and does not create any doubt about all what has been said by
her. The argument that normally a person will raise a cry when he is being forcibly taken
away, was dealt with the High Court by recording a finding that she did not raise alarm as she
was frightened and it was to be borne in mind that she was an illiterate, rural and rustic
village lady who would believe in superstitions, more particularly when in 10 years married
life she did not have a child and accused-appellant Gabbu has promised her that he would do
something by which she could have a child. The tribe to which the prosecutrix belonged is
known to believe in superstitions. The High Court observed that it was not impossible that
because of the fear she did not raise any cry, more particularly when she was taken away to a
place unknown to her.
6. As far as delayed FIR is concerned, it was held by the High Court that the
complainant had already gone to the police station immediately next date, i.e. on 26.7.1992
and made a complaint. Since it was not registered by the police, a written complaint was
made on 22.10.1992 when the prosecutrix returned back and thus the prosecution had
established its case and accordingly the High Court confirmed the order of conviction and
sentence passed against the accused-appeallant.
7. The prosecution case centers around the statement of the prosecutrix who was
examined as Witness No. 4. She deposed that on the day of incident in the evening accused
appellant Gabbu came with the other accused Sher Singh (Sheru) and they told her that she
had no child and then asked her to show her hand. On her refusal to show the hand, Gabbu
forcibly caught her hand and accused Sheru applied some medicine. Thereafter, they again
came at 10.11 p.m. They forcibly made her to get up. Sheru forcibly caught her mouth and
Gabbu pointed the knife towards her and threatened not to raise alarm. She did not raise any
alarm because she was frightened. Sheru and Gabbu took her on foot upto village Gunabad.
Thereafter, she accompanied the other accused Sheru as Gabbu, the accused-appellant, left
them at Gunabad. She further narrated about what happened to her when she went along with
the other accused. She agreed in her cross-examination that there was no door in her hut and
also no arrangement of light. Oil was applied by Sheru, the other accused, forcibly. On the
day of incident, she along with her husband was sleeping on one single cot. She recognized
Gabbu from his voice when he said if she would raise alarm she would be killed. In this
commotion, her husband got up. The accused forcibly dragged her and took her away. She
stated that she had not gone on her own desire. The threat was given by Gabbu at village
8. It appears from the evidence of the prosecutrix that the story of the prosecutrix as
alleged in the FIR that the prosecutrix was abducted when she had gone to attend the call of
nature has been given a complete go-bye by the prosecutrix when she stated that the accused
entered in her house where she was sleeping with her husband and from there she was
forcibly taken away by the accused-appellant with the other accused. She also stated that due
to the commotion her husband woke up, yet the accused forcibly dragged her away from her
9. It is difficult to believe that the prosecutrix who is a matured lady married for 10
years would be made to walk from her place of residence to the other village and she would
not raise any hue and cry apart from the fact that her husband who was sleeping with her had
woken up and yet the accused had forcibly taken the prosecutrix away from her house. The
husband in natural course of conduct would have resisted her wife being taken away forcibly.
If he had some handicap because of being single, he would have certainly raised alarm and
called the other persons. The place from where the prosecutrix was taken away, as preferred
in the FIR on one hand and stated in the evidence of the prosecutrix on the other raises a
grave doubt about the happening of the incident as alleged by the prosecution.
10. Delay in lodging the FIR is another factor which creates doubt in the prosecution
11. Apart from this, to constitute an offence under Section 366, IPC it is necessary for
the prosecution to prove that the accused induced the complainant-woman or compelled by
force to go from any place, that such inducement was by deceitful means, that such abduction
took place with the intent that the complainant may be seduced to illicit intercourse and/or
that the accused knew it to be likely that the complainant may be seduced to illicit intercourse
as a result of her abduction. Mere abduction does not bring an accused under the ambit of this
penal Section. So far as a charge under Section 366, IPC is concerned, mere finding that a
woman was abducted is not enough, it must further be proved that the accused abducted the
woman with intent that she may be compelled, or knowing it to be likely that she will be
compelled to marry any person or in order that she may be forced or seduced to illicit
intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
Unless the prosecution proves that the abduction is for the purposes mentioned in Section
366, IPC the Court cannot hold the accused guilty and punish him under Section 366, IPC.
12. We have gone through the statement of the prosecutrix. The prosecutrix
nowhere alleged that she was abducted with the intention to commit an offence, that she was
compelled to marry the accused or any other person or that the accused knew that she would
be forced or seduced to illicit intercourse or that it was likely that she would be forced or
seduced her to illicit intercourse.
13. The story unfolded from the evidence led by the prosecution appears to be that the
accused-appellant along with the other accused in the evening went to the house of the
prosecutrix and the other accused applied some medicine on her hand so that she might
get pregnant after 10 years of marriage. The accused might have persuaded her to accompany
them so that they could administer the medicine to her and she being an illiterate lady
believing in the superstitions agreed to accompany them. After the accused-appellant left
both of them at village Gunabad, the other accused had other intentions and committed the
offence as alleged by the prosecution. That does not ipso facto prove the fact that from the
very beginning the accused-appellant had any intention of inducing the prosecutrix to
forcibly marry him or the other accused or she was induced or seduced to illicit intercourse
with the accused-appellant or with the other person whose company he left at Gunabad.
There is no allegation that from the house of prosecutrix upto Gunabad the accused-appellant
made nay advances against the prosecutrix so as to show his intention of committing
forcible intercourse with her.
14. In overall consideration of the material placed on record by the prosecution we
do not find that the prosecution has proved that the accused-appellant has committed an
offence under Section 366, IPC. There is a doubt as to the place of incident and the motive of
the accused in taking away the prosecutrix. We find it difficult to believe in the story put
up by the prosecutrix that she was forced to leave her place of residence under a threat by
showing a knife to her.
15. For the aforesaid reasons, we allow the appeal and set aside the order of conviction
and sentence passed by the Session Court and confirmed by the High Court under Section
366 and 506-B, IPC against the accused appellant.
[2006 (2) T.N.L.R. 129 (Mad)]
MADRAS HIGH COURT
S.R. SINGHARAVELU, J.
S. SAMSEN PAPLI . ..Petitioner
SRIDEVI JUDICIAL MAGISTRATE NO. II ERODE . ..Respondent
[Contempt Petition No. 25583 of 2005. Sub application No. 25584 of 2005, decided on 2nd
Negotiable Instruments Act, 1881—Section 138—Contempt of Courts Act, 1971—
Section 2—Dishonour of cheque—Complaint—Not signed by complainant—Held a
curable defect—High Court directed that complaint to be signed by himself—
Comprehensive compliance of direction by Magistrate—Not a breach of direction—
Contempt petition not maintainable. (Paras 9 and 10)
Case law: —AIR 1955 All 161 : AIR 1956 SC 604 : (1994) 1 Crimes 820 (Mad): 2002
Cri LJ 266 : (2004) 2 Bankmann 664 : 2005 Cri LJ 3572 (Mad) referred.
Counsel: —T. L. Ram Mohan, Sr. Advocate, for R. Madanagopal, for petitioner.
S. R. SINGHARAVELU J.— Learned Senior Counsel for the petitioner argues that when
para 55 of the judgment in 2005 (3) CTC 480 : (2005 Cri LJ 3572) (Mad) (Y. Vijaalakshmi
alias Rambha v. Manickam Narayanan) envisaged that a complaint under Section 138 of
Negotiable Instruments Act shall be filed by the payee himself along with other conditions,
the non-compliance of the first and foremost conditions, namely, the “the complaint shall be
signed by the payee himself” will not only make the complainant irregular; but also will
show that the Magistrate who has taken it on file, has committed willful disobedience of the
direction of the High Court, amounting to contempt.
2. The learned senior counsel would also rely upon AIR 1955 All 161 (Sessions Judge,
Meerut v. City Magistrate, Meerut), wherein it was observed as follows:
“it is not for the superior Courts to say under what law they have issued the
directive. The subordinate Courts should presume for the time being, unless the
contrary appears, that the order is lawful. If it appears to them that the order is
without jurisdiction, they may not comply with it but this will be at their own
peril. If it turns out that the order was passed within jurisdiction they will be
disobeying it at the cost of being punished for contempt of Court. Even when
they refuse compliance with an order passed without jurisdiction, they must do
so in courteous language. Any discourtesy shown by them to a superior
Court is again bound to involve them in proceedings for contempt. No
subordinate Court is entitled to demand of the superior Court the law under
which the order has been passed before complying with it. They must find the
law for themselves if they intend to question the order; otherwise they should
strictly comply with it both in letter and in spirit. It must be understood by all
concerned that any discourtesy or disobedience shown to the orders of superior
Courts will be visited by this Court with the severest penalities.
3. When the matter was posted for maintainability, the availability of prima facie case
was also gone into. Suppose, if there is no prima facie case, there is nothing wrong in holding
that the contempt petition is not maintainable.
4. Mr. Ram Mohan learned senior counsel for the petitioner was heard in that regard. It
was brought to his notice paras 26, 54, 34, 36 and 40 of my judgment reported in 2005 (3)
CTC 480 : (2005 Cri LJ 3572) (Mad), wherein several case laws including M/s. MMTC Ltd.
v. M/s. Medchi Chemical and Pharma (P) Ltd.., AIR 2002 SC 182 : (2002 Cri LJ 266) :
Ramesh v. Ganeshchandra (2004 (2) Bankmann 464): Ravulu Subba Rao v. I.T.
Commissioner (AIR 1956 SC 604) and Ruby Leather Exports v. K. Venu (1994 (1) Crimes
820 (Madras)) were relied upon.
5. The resultant observation found in para 55 of my judgment was only based upon the
principles enunciated in the above cited cases. That is why reliance was placed upon the
above mentioned paragraphs in the above case laws as indicated earlier.
6. A careful perusal of MMTC’s case (cited supra), it is understandable, the non-
signing of the complainant in the complaint is a curable defect and the complainant can later
on sign the complaint, whereby it would become clear that the complainant should sign the
complaint. The same proposition was followed in Ruby Leather Exports case, which was
mentioned in para 40 of my judgment. Thus, there are two limbs. One is that the complainant
should sign the complaint and another is that the non-signing of the complaint by the
complainant is a curable defect.
7. Although it was not explicitly mentioned in the resultant para 55 of my judgment,
by reading of the entire judgment. It would be made clear that the resultant direction was
arrived at based upon the above-mentioned case laws wherein the principle was laid that
normally the complainant shall sign the complaint and the default, even though amounting to
a defect, it is curable.
8. This aspect was dealt with in para 54 of the judgment, just prior to the para in which
the result was mentioned as follows:
Viewed in this perspective, even what is regarded as mandatory traditionally may,
perhaps, have to be moderated into whole some directions to be complied with in time or in
extended time………Even otherwise, at the most, non-examination of complainant and
examination of power of attorney holder of complainant in such a case would be an
irregularity and not an illegality………”.
9. Thus, a whole reading of the judgment would make it clear that the non-signing of
the complaint by the complainant is a curable defect. This was also mentioned in the case
laws, which were relied upon, for arriving at the conclusion.
10. So, what is required is not only perusing para 54 in a microscopic view, but also
the entire reading of the judgment and if that is done, then the action of the Magistrate is a
comprehensive compliance and I find no breach or disobedience. Since there is no prima
facie material to make out a contempt, this contempt petition is rejected as not maintainable.
Consequently, connected sub-application is dismissed.
[2006 (2) T..N.L.R. 132 (HP)]
HIMACHAL PRADESH HIGH COURT
K. C. SOOD, J.
BAL KRISHNAN SHARMA ……Petitioner
TEK RAM …Respondent
[Criminal Appeal No. 474. of 2000, decided on 13th January, 2006]
Negotiable Instruments Act, 1881—Section 138—Applicability of—Dishonour of
cheque—Cheque in question drawn on a close account—Held, provision of Section 138
would be applicable.
Case law:—AIR 1965 SC 871 : AIR 1974 SC 517 : AIR 1999 SC 1952 : 2000 Cri LJ
1464 : 2005 (1) Civil Court cases 690 (SC).—referred.
Counsel:—Neeraj Gupta, for Appellant; Ramesh Thakur, for Respondent.
K.C. SOOD, J.— Would a cheque issued after the date of closure of an account in a
Bank fall within the mischief of Section 138 of the Negotiable Instruments Act (“Act” for
short) is the question which calls for an answer in this petition.
2. Undisputed facts necessary for the disposal of this petition are :
The respondent Tek Ram, hereinafter referred to as the (“accused”) approached the
petitioner Bal Krishan Sharma (“Complainant” for short) in September, 1996 for a loan of
rupees one lakh saying that he required this amount to discharge his previous liability with
the Bank which will enable him to get a loan of rupees 4 lakhs from the Bank and that he
would repay the amount. The petitioner accordingly advanced rupees one lakh to the accused
in cash and the accused in consideration whereof issued him a cheque dated December 13,
1996 drawn on Punjab National Bank, Fozal in the amount of rupees one lakh. The cheque
bounced, when the petitioner presented it to the Bank, with the endorsement that the account
maintained by the accused with the Bank had been closed.
3. The evidence led by the petitioner shows that the cheque book, from which the
cheque in question was drawn, was issued in favour of the accused. This account was
maintained by the accused in the name of “Jawala Furniture Works Association” and was
closed by the accused on September 16, 1994, i.e., prior to the issuance of the cheque to the
4. Learned trial Magistrate dismissed the complaint holding that in order to invoke
Section 138 of the Act, the maintenance of account with the Bank on the date of issuance of
the cheque by the accused was necessary so as to bring the dishonour of the cheque within
the scope of Section 138 of the Act.
5. Another ground for the dismissal of the complaint and acquittal of the accused was
that the account in question was maintained in the name of “Jawala Furniture Works
Association” and therefore, the cheque must have been issued on behalf of the “Jawala
Furniture Works Association” and in the circumstances, it cannot be said that the accused
issued the cheque in his personal capacity.
6. Dissatisfied with the acquittal of the accused, the complainant is in this petition
under Section 378 (4) of the Code of Criminal Procedure.
7. Heard Mr. Neeraj Gupta learned counsel for the appellant and Mr. Ramesh Thakur,
learned counsel for the respondent.
8. Chapter-VIII consisting of Sections 138 of 147 of the Act was inserted in Act by
an amendment Act of 1988 with effect from April 1, 1989. This chapter was incorporated in
the Act to prevent harassment of the honest drawers. Section 138 reads :
“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of that
account for the discharge in whole or in part, of any debt or other liability,
is returned by the Bank unpaid; either because of the amount of money
standing to the credit of the account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act, be punished with
imprisonment for (a term which may be extended to two years), or with fine
which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the
date on which it is drawn or within the period of its validity, whichever is
(b) the payee or the holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, (within thirty days) of the receipt of
information by him from the bank regarding the return of the cheque as unpaid;
(c) the drawer of such cheque fails to make the payment of the said amount of
money to the payee or as the case may be, to the holder in due course of the
cheque within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt or other liability” means a
legally enforceable debt or other liability”.
9. The provisions contained in this Chapter are primarily designed to provide an
additional criminal remedy, over and above the civil remedies available to payee or holder in
due course of a cheque. This chapter protects the interests of payee or holder in due course of
a dishonoured cheque. The object of the chapter is to enhance the acceptability of the cheque
in settlement of financial liabilities by making the drawer liable for penalties. It is noticed
that for establishing the requirements of Section 138, there is no burden on the part of the
complainant to prove before a Court the entire details of the transactions resulting in issuance
of the cheque. As observed by the Apex Court in Kusum Ingots and Alloys Limited v. Pennar
Peterson Securities Ltd, (2002) 2 SCC 745 : (2000 Cri LJ 1464), the object of bringing
Section 138 on statute is to inculcate faith in the efficacy of banking operations and
credibility in transacting business on negotiable instruments. Looking to the object of
incorporating Chapter-VIII in the Act, the expression, “on account maintained by him”
used in Section 138 of the Act, noticed above, cannot be interpreted to give it an artificial or
unrealistic meaning. What the provision says is that the cheque must be drawn on account
which the accused maintained with the Bank. The status of the account, when the cheque was
drawn, whether it was live or dead, is irrelevant. What the provision says is that the accused
must have an account which he maintains or had maintained with the Bank. The Legislature
has not used the present continuous tense. The expression used is “on account maintained by
him” and not “maintained by him”. The cheques, in my view, should have a reference to an
account of the accused irrespective of the fact whether such account was live or dead on the
date of issuance of the cheque. The interpretation to the expression “on an account
maintained by him” as given by the learned trial Magistrate and contended by the learned
counsel for the accused is artificial and beyond the legislative intent. While interpreting the
provision, the legislative purpose and goal has to be kept in mind. We cannot lose sight of the
fact that in this era, the financial transactions are not dependent on cash and therefore
financial transaction by other modes including “cheques” have to be attached credibility.
10. The following observations of the Supreme Court in NEPC Micon Ltd. v. Magma
Leasing Ltd., (1999) 4 SCC 253 : (1999 Cri LJ 2883) are apposite.
“10. This Court in the case of Kanwar Singh v. Delhi Admn. (1965 (2) Cri LJ 1)
while construing Section 418 (i) of the Delhi Municipal Corporation Act, 1959
“it is the duty of the Court in construing a statute to give effect to the intention of
the legislature. If, therefore, giving a literal meaning to a word used by the
draftsman, particularly in a penal statute, would defeat the object of the
legislature, which is to suppress a mischief, the Court can depart from the
dictionary meaning or even the popular meaning of the word and instead give it
a meaning which will ‘advance the remedy and suppress the mischief.”
11. Further, while interpreting the statutory provision rule dealing with penalty under
the Drugs and Cosmetics Act, 1940 and the rules in the case of Swantraj v. State of
Maharashtra (1974 Cri LJ 472), this Court held that every legislation is a social document
and judicial construction seeks to decipher the statutory mission, language permitting, taking
the one from the rule in Heydon’s case of suppressing the evil and advancing the remedy.
The Court held that what must tilt the balance is the purpose of the statute, its potential
frustration and judicial avoidance of the mischief by a construction whereby the means of
licensing meet the ends of ensuring pure and potent remedies for the people. The Court
observed that this liberty with language is sanctified by great Judges and textbooks. Maxwell
instructs us in these words:
“There is no doubt that the office of the Judge is, to make such construction as
will suppress the mischief, and advance the remedy, and to suppress all
evasions for the continuance of the mischief. To carry out effectively the object
of a statute, it must be so construed as to defeat all attempts to do, or avoid doing
in an indirect or circuitous, manner that which it has prohibited or enjoined :
quando aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud.
This manner of construction has two aspects, one is that the Courts, mindful of
the mischief rule, will not be astute to narrow the language of a statute so as to
allow persons within its purview to escape its net. The other is that the statute
may be applied to the substance rather than the mere from to transaction, thus
defeating any shifts and contrivances which parties may have devised in the
hope of thereby falling outside the Act. When the Courts find an attempt at
concealment, they will, in the words of Wilmot, C.J. ‘brush away the cobweb,
varnish, and shew the transaction in their true light’.”
Their Lordships proceeded to observe :
15. In view of the aforesaid discussion we are of the opinion that even though
Section 138 is a penal statute, it is the duty of the Court to interpret it consistent
with the legislative intent and purpose so as to suppress the mischief and
advance the remedy. As stated above, Section 138 of the Act has created a
contractual breach as an offence and the legislative purpose is to promote
efficacy of banking and of ensuring that in commercial or contractual
transactions cheques are not dishonoured and credibility in transacting business
through cheques is maintained. The above interpretation would be in accordance
with the principle of interpretation quoted above “brush away the cobweb,
varnish, and shew the transaction in their true light” (Wilmot , C.J.) or (by
Maxwell) “to carry out effectively the breach of the statute, it must be so
construed as to defeat all attempts to do, or avoid doing, in an indirect or
circuitous manner that which it has prohibited”. Hence, when the cheque is
returned by a bank with an endorsement “ account closed”. It would amount to
returning the cheque unpaid because “the amount of money standing to the
credit of that account is insufficient to honour the cheque” as envisaged in
Section 138 of the Act”.
11. If the interpretation as contended by the learned counsel for the accused and the
trial Court is to be a accepted, then a person who receives the cheque will have to ensure that
the account is live. If he does not, he runs the risk of loosing his money and denial of benefit
under Section 138 of the Act. This certainly cannot be the legislative intent. Any account
holder with intent to defeat the provisions of Section 138 of the Act, may retain a cheque leaf
after closing his account with the Bank to defraud any honest payee. Should such a dishonest
account holder be permitted to escape the proceedings under Section 138 of the Act?
12. Learned counsel for the accused would contend that the observations in NEPC
Micon Limited were that if a cheque is dishonoured on the ground that the accused is closed
then it would come within the sweep of Section 138 of the Act but if the cheque is issued on
a closed account, then such an act of a dishonest person would not fall within the mischief of
Section 138 of the Act. It is true that NEPC case (1999 Cri LJ 2883) does not specifically
deal with the cheque issued on accounts closed prior to the date of issuance of the cheque.
Nevertheless, this case does not indicate that such cases are intended to be taken out of the
sweep Section 138 of the Act. In my opinion the expression “an account maintained by him”
necessarily includes an account which was maintained by him, i.e. the account which has
been closed as also the account which is still maintained by him.”
13. The Supreme Court in N.A. Issac v. Jeemon P. Abraham, 2005 (1) Civil Court
Cases 690 (SC), interpreted Section 138 of the Act and observed that contention that this
provision will not be applicable when the cheque is issued form an already closed account
cannot be upheld as such an interpretation would defeat the object of insertion of the
provision in the Act. Their Lordships observed “Section 138 does not call for such a narrow
construction” Their Lordship approved that expression used in Section 138 of the Act
includes the cheques issued on a closed account.
14. For the reasons recorded above, the findings recorded by the trial Magistrate
holding that Section 138 of the Act is not applicable to a cheque drawn on a closed account,
cannot be upheld.
15. So far the second reason that the cheque was drawn by the accused on an account
of “Jawala Furniture Works Association” which admittedly the accused was member and
therefore, the accused was not liable, is concerned, this finding to say least is without
application of mind.
16. It is admitted position that accused had an account with the Bank which he closed
on September 16, 1994 as deposed by Sham Lal, cashier of the Bank and noticed by the
learned trial Magistrate that “the accused had closed his account with the Bank on
16.9.1994”. Therefore, by no stretch it can be said that the accused had not maintained any
account with the Bank. The findings recorded by the learned trial Magistrate on this aspect of
the case are perverse and not based on any material on record.
17. No other point is urged before me.
18. In result, the petition is allowed. The impugned judgment of acquittal recorded by
the learned trial Magistrate is set aside. The case is sent back to the learned Judicial
Magistrate 1st Class, Manali District Kullu with direction that the learned Magistrate shall,
after hearing the parties, dispose of the case in the light of the observations made herein
above and in accordance with law.
19. The parties shall appear before the learned trial Magistrate on February 28, 2006.
The accused shall furnish fresh bail bonds in the amount of rupees two lakhs with one surely
of the like amount to the satisfaction of learned trial Magistrate.
[2006 (2) T.N.L.R. 138 (SC)]
S.B. SINHA AND P.P. NAOLEKAR, JJ.
STATE OF H.P. ….Appellant
[Criminal Appeal No. 1040 of 1998, decided on 12th May, 2006]
Indian Penal Code, 1860—Section 409—Misappropriation of public money—
Proof of—Actual manner of misappropriation not required to be proved by
prosecution—Once entrustment is proved, it would be for accused to prove as to how
property entrusted dealt with.
Case law:—(2004) 13 SCC 217—referred.
Counsel:—J.S. Attri, Advocate, for the Appellant Mrs. K. Sarada Devi, Advocate for
S. B. SINHA, J.—The State of Himachal Pradesh is in appeal before us aggrieved by
the judgment and order dated 24.9.1997 passed in Criminal Revision No. 149/1994,
whereby and whereunder the revision application, filed by the respondent herein, against the
judgment and order dated 1.12.1994 passed by the Sessions Judge affirming a judgment of
conviction and sentence passed by the Chief Judicial Magistrate, Sirmaur District at Nahan,
convicting the respondent for commission of an offence punishable under Section 409 of
the IPC and sentencing him to undergo simple imprisonment for a period of six months and
to pay a fine of Rs. 1,000/- has been allowed.
2. The respondent was a Post Master at Chhapang, within the Police Station Pachhad
in the District of Sirmaur, One Rajbir Singh (PP-3), uncle of the respondent-accused, was at
the relevant time working in the Government High School, Ramadhon. He had deposited a
sum of Rs. 8,000/- with the respondent-accused for purchase of National Savings
Certificates. Necessary forms were also filled up by said Rajbir Singh and a receipt
acknowledging the receipt of the said amount was issued to him. Although more than a
month had passed but the said Rajbir Singh was not handed over by National Savings
Certificate by the respondent. He, therefore, made enquiries with the postal authorities both at
Rajgarh and at Nahan, whereupon ha came to learn that no such National Saving Certificates
had been issued. He thereafter made a complaint in that behalf, with the postal authorities.
The postal authorities entrusted the matter to one Shri Brijpal Thakur (PW-4) for conducting
an enquiry. The respondent having come to learn of initiation of the said enquiry, deposited a
sum of Rs. 4200/- in the Post Office on 30.11.1989. A further deposit of Rs. 4, 000/- was
made by him on 11.12.1989. It is not in dispute that the excess amount of Rs. 200/- was
deposited by the respondent on 30.11.1989 by way of interest.
3. A First Information Report was lodged on 27.6.1990 at Police Station, Pachhad.
During the investigation, specimen and admitted writings of the respondent were taken and
sent to the handwriting expert for comparing with his writings and signatures on the receipt.
The expert opined that the questioned writing and the signatures on the deposited documents
tallied with the admitted signatures and writings of the respondent. The learned Chief Judicial
Magistrate, as notice hereinabove, found respondent guilty of commission of an offence
punishable under Section 409 IPC and sentenced him to undergo simple imprisonment for a
period of six months. A fine of Rs. 1,000/- was also imposed upon him.
4. The appeal preferred by the respondent before the learned Sessions Judge, Sirmaur,
also came to dismissed. In the revision application filed by the respondent, the High Court
held that as the prosecution had not been able to prove ‘misappropriation’ on the part of the
respondent, the judgment of conviction and sentence was unsustainable.
5. The short question which arises for consideration in this appeal is as to whether
having regard to the facts and circumstances of this case, the prosecution has been able
to prove that the respondent misappropriated the said amount.
6. Section 405 of the IPC reads as under:
“405. Criminal breach of trust.—Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonesty uses or disposes of that
property, in violation of any direction of law prescribing the mode in which such
trust is to be discharge, or of any legal contract, express or implied which he had
made touching the discharge of such trust, or willfully suffers any other person
so to do, commits ‘criminal breach of trust”.
Illustration (e) appended to the said provision in this connection be noticed.
“A, a revenue-officer, is entrusted with public money and is either directed by
law, or bound by a contract, express or implied, with the Government, to pay
into a certain treasury all the public money which he holds. A dishonestly
appropriates the money. A has committed criminal breach of trust.”
7. The respondent was a Post Master. He was holding an office of public trust. The
complainant who was a teacher entrusted the amount to the respondent for the purpose of
purchasing National savings Certificates. As soon as the amount was received by the
respondent on behalf of the postal authorities, it became public money. It was required to be
utilised for the purpose for which the same was handed over to the respondent.
8. The High Court opined that the entrustment was proved. The fact that till 29.1.1989,
the amount of Rs. 8, 000/- deposited by the complainant with the respondent, had not been
utilised for the purpose for which the same had been handed over to him also is admitted.
When an enquiry came to be made by Shri Brijpal Thakur (PW-4), the respondent deposited
the said amount in two installments along with a sum of Rs. 200/- by way of interest. The
respondent, therefore, being a public officer had the requisite knowledge that the amount
carried interest. On 16.7.1989, the postal savings certificates came to be issued. The
respondent therefore thought himself liable to pay the said amount with interest, so as to
reimburse to the complainant the amount to which was entitled by way of interest for
depositing the said amount. Even on 30.11.1989, he did not deposit the entire amount. The
entire amount came to be deposited by him on 11.12.1989. We, therefore, fail to understand
as to on what basis the learned Judge opined that the second ingredient of Section 405 of the
IPC, i.e. misappropriation of the amount by the respondent-accused had not been
proved. The High Court, in our considered view, completely misdirected itself in opining that
it was obligatory on the part of Rajbir Singh (PW-3) of Brijpal Thakur (PW-4) to state in
their complaint that the accused committed criminal misappropriation with intention to
utilise the amount for his personal use. The very fact that the respondent retained with him
the entrusted amount is not disputed. If he did not utilise the amount for the purpose for
which the same had been deposited, an offence must be held to have been committed.
9. Mrs. K. Sarada Devi, learned counsel appearing on behalf of the respondent would
submit that no material was brought on record by the prosecution to show as to how the
respondent had utilized the amount. In our opinion the same was not necessary. In view of
the admitted fact, we are of the opinion that it was for the respondent himself to prove the
defence raised by him that the entire amount had not been paid to him by the complainant.
The learned Judge had rejected the said defence.
10. The actual manner of misappropriation, it is well settled, is not required to be
proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to
how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the
respondent had failed to produce any material for this purpose, the prosecution should not
11. The learned Trial Judge as also the learned Sessions Judge arrived at concurrent
findings of fact. The High Court, in our opinion misdirected itself in passing the impugned
judgment while exercising its revision jurisdiction. [See N. Bhargavan Pillai & Anr v. State
of Kerala, (2004) 13 SCC 217.]
12. A contention has further been raised by Mrs. Sarada Devi, that no question was put
to the respondent while he was being examined under Section 313 of the Code of Criminal
Procedure, with a view to give him an opportunity to explain whether the amount was given
to him for his personal use or he converted the money for his personal use. We are afraid that
such contention cannot be accepted. While examining the accused under Section 313 of
Cr. P.C. the Trial Court is merely required to ask such question which has been brought on
record as against the respondent.
13. The respondent in fact had admitted the entire prosecution case for all intent and
purport. The entire evidence which was adduced on behalf of the prosecution was made
known to the accused. In his statement under Section 313 Cr. P.C. he accepted that he had
received a sum of Rs. 8,000/- from the complainant and he had deposited the said amount
together with interest, in two installments. He had merely reiterated his defence, as noticed
hereinbefore, that the complainant had not paid to him the entire sum of Rs. 8,000/- which
had not been accepted by the Trial Court. We are, therefore, of the opinion that the High
Court committed a manifest error in arriving at a finding that there has been infraction of the
mandatory provisions of Section 313 Cr. P.C.
14. For the aforesaid reasons, the impugned judgment cannot be sustained and it is
set aside accordingly.
22. The members of the unlawful assembly can be held liable under Section 149 IPC,
if it is shown that they knew beforehand that the offence actually committed was likely to be
committed in prosecution of the common object. It is true that the common object does not
require prior concert and a common meeting of mind before the attack. It can develop even
on spot but the sharing of such an object by all the accused must be shown to be in existence
at any time before the actual occurrence.
23. In Rajendra Shantaram Todankar v. State of Maharashtra and Others., (2003) 2
SCC 257, this Court has held that Section 149 of the Indian Penal Code provides that if an of-
fence is committed by any member of an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who at the time of the committing of
that offence, is a member of the same assembly is guilty of that offence. The two clauses of
Section 149 vary in degree of certainty. The first clause contemplates the commission of an
offence by any member of an unlawful assembly which can be held to have been committed
in prosecution of the common object of the assembly. The second clause embraces within its
fold the commission of an act which may not necessarily be the common object of the
assembly, nevertheless, the members of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common object. The common object may be
commission of one offence while there may be likelihood of the commission of yet another
offence, the knowledge whereof is capable of being safely attributable to the members of the
unlawful assembly. In either case, every member of the assembly would be vicariously liable
for the offence actually committed by any other member of the assembly. A mere possibility
of the commission of the offence would not necessarily enable the Court to draw an inference
that the likelihood of commission of such offence was within the knowledge of every mem-
ber of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct
evidence of such knowledge. An inference may be drawn from circumstances such as the
background of the incident, the motive, the nature of assembly, the nature of the arms carried
by the members of the assembly, their common object and the behaviour of the members
soon before, at or after the actual commission of the crime. Unless the applicability of
Section 149, either clause, is attracted and the Court is convinced, on facts and in law, both,
of liability capable of being fastened vicariously by reference to either clause of Section 149
IPC, merely because a criminal act was committed by a member of the assembly, every other
member thereof would not necessarily become liable for such criminal act. The inference as
to likelihood of the commission of the given criminal act must be capable of being held to be
within the knowledge of another member of the assembly who is sought to be held vicari-
ously liable for the said criminal act.
24. In State of Rajasthan v. Nathu and Ors., (2003) 5 SCC 537, this Court has held
that if death had been caused in prosecution of the common object of an unlawful assembly,
it is not necessary to record a definite and specific finding as to which particular accused out
of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly
has come into existence, each member of the assembly becomes vicariously liable for the
criminal act of any other member of the assembly committed In prosecution of the common
object of the assembly.
25. It is held in Parsuram Pandey and Ors. v. State of Bihar, (2004) 13 SCC 189, that
to attract Section 149, IPC the prosecution must prove that the commission of the offence
was by any member of an unlawful assembly and such offence must have been committed in
prosecution of the common object of the assembly or must be such that the members of the
assembly knew that it was likely to be committed. Unless these three elements are satisfied
by the prosecution the accused cannot be convicted with the aid of Section 149 IPC.
26. In Rabindra Mahto & Ors. v. State of Jharkhand, JT 2006(1) SC 137, this Court
has held that under Section 149 IPC, if the accused is a member of an unlawful assembly, the
common object of which is to commit a certain crime, and such a crime is committed by one
or more of the members of that assembly, every person who happens to be a member of that
assembly would be liable for the commission of the crime being a member of it irrespective
of the fact whether he has actually committed the criminal act or not. There is a distinction
between the common object and common intention. The common object need not require
prior concert and a common meeting of minds before the attack, and an unlawful object can
develop after the assembly gathered before the commission of the crime at the spot itself.
There need not be prior meeting of the mind. It would be enough that the members of the
assembly which constitutes five or more persons, have common object and that they acted as
an assembly to achieve that object. In substance, Section 149 makes every member of the
common unlawful assembly responsible as a member for the act of each and all merely
because he is a member of the unlawful assembly with common object to be achieved by
such an unlawful assembly. At the same time, one has to keep in mind that mere presence in
the unlawful assembly cannot render a person liable unless there was a common object and
that is shared by that person. The common object has to be found and can be gathered from
the facts and circumstances of each case.
27. The prosecution has established that all the accused- appellants came to the spot
of incident together. All the accused-appellants were carrying deadly weapons. Two of them
had carried 12 bore guns. Immediately on reaching the spot Mohinder Singh one of the
accused had opened fire followed by firing by another accused-appellant Nasib Singh and in
the same transaction the accused-appellants had caused several injuries to various persons,
not only to the persons who were present at the spot but also to the persons who had reached
the spot after hearing the commotion. The facts found In the case clearly established the
common object of the assembly. The knowledge of assembly that grievous hurt or death
would be caused can be safely attributed to the members of the unlawful assembly because of
the fact that two of the members of the assembly have carried the licensed guns. An Inference
can be drawn of the knowledge of common object and formation of common object from the
behaviour of the members of the assembly of the accused persons, who came together with
deadly weapons and immediately started attacks indiscriminately on the persons present
there. As many as nine persons have received 31 injuries, which clearly establishes the
common object of the unlawful assembly to do away with Harbans Singh and cause injuries
to any person who tried to intervene.
28. We are satisfied with the evidence led by the prosecution that common object of all the
accused appellants of causing death of Harbans Singh was established beyond any doubt and,
therefore, the accused-appellants were rightly convicted under Section 302 IPC with the aid
of Section 149 of IPC apart from other convictions under other sections of IPC for causing
injuries to other persons.
29. For the foregoing reasons, in our view there is no merit in this appeal. The appeal
2006 (2) TNLR….(SC)
Arijit Pasayat and C.K. Thakker, JJ.
State of Haryana —Respondent
[Criminal Appeal No. 689 of 2006, Arising out of SLP (Cri) 385 of 2006 decided on 5th June,
Indian Penal Code, 1860—Sections 304, Part II and 302—Murder—Conviction
and Sentence—Appellant armed with gun appeared before deceased and raised lalkara
that he will teach lesson for giving secret information to police—Appellant fired a shot
at deceased hitting on his thigh—As per medical report injury was dangerous to life—
Clause (4) of Section 300, IPC would be applicable where knowledge of the offender as
to the probability of death of a person being caused from his imminently dangerous
act—On facts and circumstances, offence of accused would fall under Section 304, Part
II IPC and not under Section 302, IPC.
(Paras 25 to 28)
Case law:—AIR 1966 SC 1874; AIR 1958 SC 465; (1976) 4 SCC 382; (2002)7 SCC
175; (2003) 10 SCC 472; (2005) 9 SCC 650, referred.
Counsel:—Naresh Kaushik, Mrs. Lalita Kaushik, for the appellant; Rajeev Gaur
Naseem, T.V. George, for the respondent.
Arijit Pasayat, J.—Leave granted.
2. Appellant calls in question legality of the judgment rendered by a Division Bench
of the Punjab and Haryana High Court dismissing the appeal filed by the appellant,
upholding the conviction recorded and sentenced imposed on the appellant by learned
Additional Sessions Judge, Hissar, for alleged commission of offences punishable under
Section 302 of the Indian Penal Code, 1860 (in short ‘IPC’) and Section 27 of the Arms Act,
1959, (in short the ‘Arms Act’). The appellant was convicted for the offence punishable
under Section 302 IPC and sentenced to undergo RI for life and to pay a fine of Rs. 10,000/-
with default stipulation. He was also convicted in terms of Section 27 of the Arms Act and
was sentenced to undergo RI for one year and to pay a fine of Rs. 500/- with default
3. Background facts in nutshell are as follows:
Vishnu Ram (PW-8) followed agricultural pursuits at village Tharwa. His elder
brother Prithi Raj lived separately from him. Subhash (hereinafter referred to as the
‘deceased’) was the son of said Prithi Raj. About 1½ years prior to this occurrence, the police
had recovered poppy husk from appellant - Rajinder. He suspected that deceased had given
secret information to the police and he had a hand in getting the poppy husk, recovered from
him. Then in the year 1995, Prithi Raj had taken 10 acres of land on lease from Indal Kumar,
brother of appellant-Rajinder. Rajinder took ill of it.
4. On 29.4.1995 at about 7.00 p.m., Vishnu Ram (PW-8) and deceased were going to
irrigate their fields. Appellant met them on the village phirni. He declared that deceased had
given information to the police regarding the poppy husk and Prithi Raj had taken on lease
the land of his brother and they shall have to pay price for the same. Vishnu Ram (PW-8)
pacified appellant and he left for the village. Then later at about 9.15 p.m. Vishnu Ram (PW-
8) and deceased were going through their fields looking after the water course. Vishnu Ram
(PW-8) had a torch with him. When they reached on the culvert by the side of the village
near the road leading to village Pirthala and deceased was walking ahead of Vishnu Ram
(PW-8), appellant was spotted in the torch light coming from the village side. He was armed
with his gun. He enquired from Vishnu Ram (PW-8) and deceased as to who they were.
Vishnu Ram disclosed his own identity and identity of Subhash. Then appellant raised a
‘lalkara’ saying that he will teach a lesson to them for giving secret information to the police
and for taking the land on lease. He then fired a shot at Subhash with his gun, which hit on
his right thigh. Subhash fell down on the ground. Vishnu Ram (PW-9) raised alarm.
Appellant then ran away towards his house by firing shots from the gun. Prithi Raj, elder
brother of Vishnu Ram (PW-8) reached the spot on hearing the alarm. A conveyance was
arranged and Vishnu Ram and Prithi Raj took Subhash to Tohana for treatment.
5. Dr. H.L. Gupta (PW-9) on 29.4.1995 at 10 a.m. medically examined the injured.
He found the following injury on his body :
“1. A fire arm wound on the right thigh-wound of entry - circular in shape 1¼ cm x
1¼ cm margins were inverted on the postereo-lateral aspect of the middle of the right thigh.
Margins were greasy and black.
Wound of exit-large extensive would 1½ x 4" on the atereo-medical aspect of right
thigh (at middle). There were severe bleeding from the wound and margins were averted.
There was corresponding tears in the pant.
There was corresponding tear in the pant. Pant Ex.P 16 was sealed by the doctor into
a parcel and it was given to the police.”
6. The doctor opined that the injury was dangerous to life. Its duration was fresh and
it was caused by a fire-arm. Ex.PK is copy of the M.L. report. Dr. H.L. Gupta had sent ruqas
Ex.PM and PL to the police.
7. Subhash Chander (PW-14) Sl/SHO Police Station Tohana on the night intervening
29/30.4.1995 received two ruqas Ex.PL and PM from Civil Hospital, Tohana. He then went
to Civil Hospital Tohana along with other police officials. Ruqas were accompanied by copy
of M.L. report of Subhash. Vishnu Ram complainant met PW Subhash Chander SI in the
hospital. His statement Ex.PD was recorded. He made his endorsement Ex. PD/2 and got his
case registered. Ex.PD/1 is the copy of the FIR.
8. Subhash succumbed to the injury in the hospital. His dead body was lying on the
trolly in the gallery of the hospital, when Subhash Chander SI visited the hospital. He
prepared Inquest Report Ex.PH on the dead body of Subhash. Inquest proceedings were
attested by Vishnu Ram and Prithi Raj.
9. Application Ex.PQ was sent through Om Parkash Constable for getting the post
mortem examination conducted on the dead body of Subhash.
10. On 30.4.1995 at 8.30 a.m., Dr. B.B. Lala (PW-I0) conducted post mortem exami-
nation on the dead body of Subhash, who had expired on 29.4.1995 at 11.50 p.m. in the
11. On completion of investigation charge-sheet was filed and the accused was
charged for alleged commission of offence punishable under Section 302 IPC and Section 27
of the Arms Act.
12. Prosecution examined 14 witnesses. PW-8 was stated to be eye-witness. Accused
pleaded innocence and false implication. Before the High Court the stand of the accused was
that there was delay in sending the first information report. The alleged motive for
commission of offence is not established and in any event there was only one injury that too
on the thigh and, therefore, the case is not covered under Section 302, IPC. As noted above
trial Court found the accused guilty and convicted and sentenced him. In the appeal before
the High Court, the plea raised before the trial Court was reiterated before the High Court.
The prosecution supported the order of conviction as recorded by the trial Court. The High
Court on consideration of rival stands held that the conviction as recorded and sentenced as
awarded do not suffer any infirmity. The appeal was accordingly dismissed.
13. In support of the appeal learned counsel for the appellant submitted that scenario
as depicted clearly rules out application of Section 302 IPC. At the most even if prosecution
version is accepted in toto the conviction could be under Section 326 IPC. It is submitted that
accused has already suffered custody for more than 6 years and 8 months.
14. Learned counsel for the State on the other hand supported the impugned
15. The crucial question is as to which was the appropriate provision to be applied. In
the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is
‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special
characteristics of murder is culpable homicide not amounting to murder’. For the purpose of
fixing punishment, proportionate to the gravity of the generic offence, the IPC practically
recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable
homicide of the first degree’. This is the gravest form of culpable homicide, which is defined
in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second
degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homi-
cide of the third degree’. This is the lowest type of culpable homicide and the punishment
provided for it is also the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second part of Section 304.
16. The academic distinction between ‘murder’ and ‘culpable homicide not
amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing
sight of the true scope and meaning of the terms used by the legislature in these sections,
allow themselves to be drawn into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in focus the keywords
used in the various clauses of Sections 299 and 300. The following comparative table will be
helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300
A person commits culpable homicide Subject to certain exceptions culpable
if the act by which the death is homicide is murder if the act by
caused is done— which the death is caused is done—
(a) with the intention . (1) with the intention of
of causing death; or causing death; or
(b) with the intention of (2) with the intention of causing such
causing such bodily injury bodily injury as the offender knows
as is likely to cause death; or to be likely to cause the death of the
person to whom the harm is caused; or
(3) With the intention of causing bodily injury
to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course
of nature to cause death; or
(c) with the knowledge that the act (4) with the knowledge that the act is
is likely to cause death. so imminently dangerous that it must in
all probability cause death or such bodily
injury as is likely to cause death, and without
any excuse for incurring the risk of causing
death or such injury as is mentioned above.
17. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300.
The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar condition
or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the
fact that such harm would not in the ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is
not an essential requirement of Clause (2). Only the intention of causing the bodily injury
coupled with the offender’s knowledge of the likelihood of such injury causing the death of
the particular victim, is sufficient to bring the killing within the ambit of this clause. This
aspect of Clause (2) is borne out by illustration (b) appended to Section 300.
18. Clause (b) of Section 299 does not postulate any such knowledge on the part of
the offender. Instances of cases falling under Clause (2) of Section 300 can be where the
assailant causes death by a first blow intentionally given knowing that the victim is suffering
from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause
death of that particular person as a result of the rupture of the liver, or spleen or the failure of
the heart, as the case may be. If the assailant had no such knowledge about the disease or
special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the offence will not be murder, even if the injury
which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the
words ‘likely to cause death’ occurring in the corresponding Clause (b) of Section 299, the
words “sufficient in the ordinary course of nature to cause death” have been used. Obviously,
the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient
in the ordinary course of nature to cause death. The distinction is fine but real and if
overlooked, may result in miscarriage of justice. The difference between Clause (b) of Sec-
tion 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting
from the intended bodily injury. To put it more broadly, it is the degree of probability of
death which determines whether a culpable homicide is of the gravest, medium or the lowest
degree. The word ‘likely’ in Clause (b) of Section 299 conveys the sense of probable as
distinguished from a mere possibility. The words “bodily injury……sufficient in the ordinary
course of nature to cause death” mean that death will be the “most probable” result of the
injury, having regard to the ordinary course of nature.
19. For cases to fall within Clause (3), it is not necessary that the offender intended to
cause death, so long as the death ensues from the intentional bodily injury or injuries
sufficient to cause death in the ordinary course of nature. Rajwant and another v. State of
Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.
20. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. Speaking
for the Court, explained the meaning and scope of Clause (3). It was observed that the
prosecution must prove the following facts before it can bring a case under Section 300,
“thirdly”. First, it must establish quite objectively, that a bodily injury is present; secondly
the nature of the injury must be proved. These are purely objective investigations. Thirdly, it
must be proved that there was an intention to inflict that particular injury, that is to say, that it
was not accidental or unintentional or that some other kind of injury was intended. Once
these three elements are proved to be present, the enquiry proceeds further, and fourthly it
must be proved that the injury of the type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course of nature. This part of the enquiry
is purely objective and inferential and has nothing to do with the intention of the offender.
21. The ingredients of clause ‘Thirdly” of Section 300, IPC were brought out by the
illustrious Judge in his terse language as follows:
“To put it shortly, the prosecution must prove the following facts before it can bring a
case under Section 300, “thirdly” .
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say that it was not accidental or unintentional, or that some other kind of
injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the
three elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the intention
of the offender.”
22. The learned Judge explained the third ingredient in the following words (at page
“The question is not whether the prisoner intended to inflict a serious injury or a
trivial one but whether he intended to inflict the injury that is proved to be present. If he can
show that he did not, or if the totality of the circumstances justify such an inference, then of
course, the intent that the section requires is not proved. But if there is nothing beyond the
injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is
neither here or there. The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a particular degree of seriousness but whether he
intended to inflict the injury in question and once the existence of the injury is proved the
intention to cause it will be presumed unless the evidence or the circumstances warrant an
23. These observations of Vivian Bose, J. have become locus classicus. The test laid
down by Virsa Singh’s case (supra) for the applicability of clause “Thirdly” is now ingrained
in our legal system and has become part of the rule of law. Under clause thirdly of Section
300, IPC. culpable homicide is murder, if both the following conditions are satisfied: i.e. (a)
that the act which causes death is done with the intention of causing death or is done with the
intention of causing a bodily injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It must be proved that there was an
intention to inflict that particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death, viz., that the injury found to be present was the injury that was
intended to be inflicted.
24. Thus, according to the rule laid down in Virsa Singh’s case, even if the intention
of accused was limited to the infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention of causing death, the offence
would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
25. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge
of the probability of the act causing death. It is not necessary for the purpose of this case to
dilate much on the distinction between these corresponding clauses. It will be sufficient to
say that Clause (4) of Section 300 would be applicable where the knowledge of the offender
as to the probability of death of a person or persons in general as distinguished from a par-
ticular person or persons - being caused from his imminently dangerous act, approximates to
a practical certainty. Such knowledge on the part of the offender must be of the highest
degree of probability, the act having been committed by the offender without any excuse for
incurring the risk of causing death or such injury as aforesaid.
26. The above are only broad guidelines and not cast iron imperatives. In most cases,
their observance will facilitate the task of the Court. But sometimes the facts are so inter-
twined and the second and the third stages so telescoped into each other that it may not be
convenient to give a separate treatment to the matters involved in the second and third stages.
27. The position was illuminatingly highlighted by this Court in State of Andhra
Pradesh v. Rayauarapu Punnayya and Anr, 1976 (4) SCC 382, Abdul Waheed Khan @
Waheed and Ors. v. State of Andhra Pradesh, 2002 (7) SCC 175, Augustine Saldanha v.
State of Karnataka, 2003 (10) SCC 472 and in Thangiya v. State of T.N., 2005 (9) SCC 650.
28. When the factual background is tested on the principles set out above, the
inevitable conclusion is that the conviction under Section 302, IPC cannot be maintained and
the conviction has to be in terms of Section 304 Part II, IPC. Custodial sentence of 7 years
would meet the ends of justice.
The appeal is allowed to the aforesaid extent.
Appeal allowed partly.
2006 (2) TNLR….(SC)
B.N. Agrawal and A.K. Mathur, JJ.
Vijai Singh —Appellant
State of U.P. —Respondent
[Criminal Appeal No. 518 of 2003, with Criminal Appeal Nos. 516 and 517 of 2003, decided
on 26th July, 2005.]
Indian Penal Code, 1860—Section 302/34—Murder—Proof of—Appellant along
with two others fired at deceased from his country made gun—Causing death of
deceased—Contention of appellant that bullet recovered from dead body of deceased
being of. 303 bore, cannot be fired from country made gun—However ballistic expert in
his examination-in-chief stated that cartridge of. 303 bore could also be fired from
country made gun which was used during course of occurrence—Evidence of witness
corroborated by medical evidence—Prosecution proved its case beyond reasonable
doubt—Conviction of accused under Section 302, IPC justified.
(Paras 3, 4 & 5)
Case law:—(2002) 9 SCC 447; 2003 SCC (Cri) 1221,—referred.
B.N. Agrawal, J.— Heard learned counsel appearing on behalf of the parties.
2. Vijai Singh, who is appellant in Criminal Appeal No. 518 of 2003 and Ashok
Kumar and Vinod Kumar, who are respondents in Criminal Appeals Nos. 516 and 517 of
2003 were convicted by the trial Court under Section 302 read with Section 34 of the
Indian Penal Code (for short “IPC”) and sentenced to undergo imprisonment for life. On
appeal being preferred, the High Court acquitted Ashok Kumar and Vinod Kumar;
whereas modified conviction of accused Vijai Singh from Section 302 read with Section
34 IPC to Section 302 IPC simplicitor. Hence, these appeals by special leave. Criminal
Appeal No. 518 of 2003 has been filed by accused Vijai Singh against the order of the
High Court whereby his conviction has been upheld. Criminal Appeals Nos. 516 and 517
of 2003 have been filed by the complainant and the State of Uttar Pradesh respectively
against order of acquittal of accused Ashok Kumar and Vinod Kumar.
3. The conviction of accused Vijai Singh is based upon the evidence of PW 1
Kunwar Pal Singh. Though this witness is the brother of the deceased, but he has
supported the prosecution case in all material particulars and we do not find that the two
Courts have committed any error in accepting his evidence, more so, when his evidence
is corroborated by medical evidence as Dr. M.M. Sharma, PW 5, who held the post-
mortem examination on the dead body of deceased .found injuries caused by the country-
made gun, empty was also recovered from near the dead body and the ballistic expert,
Ram Ashray Pandey, CW 1 stated that the empty was fired from the country-made gun
recovered upon the disclosure statement made by one of the accused Vinod Kumar.
Learned counsel appearing on the behalf of the appellant submitted that a bullet was
recovered from the dead body of the deceased and the same was of 303 bore, which could
not have been fired from the country-made gun which was used during the course of the
present occurrence. It has been further submitted that a prayer was made for sending the
recovered bullet to the ballistic expert to verify whether the same was of. 303 bore, but
the prayer was rejected and when the High Court was moved, the order of rejection was
upheld. It has been then submitted that because of non-examination of the recovered
bullet by the ballistic expert, the accused has been prejudiced and on this ground alone,
he should have been acquitted. In support of his submission, learned counsel has placed
reliance upon State of M.P. v. Surpa, (2002) 9 SCC 447 : 2003 SCC (Crl) 1221. In our
view the submission has been made only to be rejected for two reasons; firstly, the
ballistic expert, CW 1 has nowhere stated in unequivocal terms that bullet recovered from
the body of the deceased was of .303 bore; secondly, in the very examination-in-chief
CW 1 stated that the cartridge of .303 bore could be also fired from the country-made
gun, Ext. 14 which according to prosecution case was used in the present occurrence.
Thus, we are of the view that on the basis of the evidence of the ballistic expert, CW 1 it
cannot be said with reasonable amount of certainty that the bullet recovered was of .303
bore and in any view of the matter the ballistic expert, CW-1 opined that cartridge of .303
bore could be fired from the country-made gun recovered, which was used during the
course of the occurrence. In the decision of this Court cited by learned counsel appearing
on behalf of the appellant, apart from the reason that the bullet recovered from the body
of the deceased could not have been fired from the firearm used by the accused, this
Court otherwise also doubted veracity of the prosecution case and, accordingly, it was
held that the accused was entitled to acquittal. In view of the foregoing discussion that the
evidence of PW 1 is supported by the medical evidence, we are of the view that the High
Court was quite justified in holding that the prosecution succeeded in proving its case
against the appellant Vijai Singh beyond doubt and converting his conviction from
Section 302 read with Section 34, IPC to Section 302, IPC.
4. Turning now to the appeals against acquittal, having perused the reasonings of
the High Court, we do not find that the ground which weighed with the High Court in
acquitting accused Ashok Kumar and Vinod Kumar was perverse in any manner and it is
well-settled that unless the Judgment of acquittal is found to be perverse, the appellate
Court would not interfere with the same.
5. For the foregoing reasons, we do not find any merit in these appeals and the
same are dismissed accordingly.