Section 302 IPC-Dhara 302-Dafa 302- Punishment for murder

Section 302 IPC-Dhara 302-Dafa 302- Punishment for murder:

Whoever commits murder shall be punished with death, or ¹[imprisonment for life] and shall also be liable to fine.

CLASSIFICATION OF OFFENCE

Punishment—Death, or imprisonment for life, and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

COMMENTS

Alteration of conviction

In case where facts and circumstances from which conclusion of guilt was sought to be drawn by prosecution was not estab­lished beyond reasonable doubt the conviction under section 302 read with section 34 and under section 392 had to be quashed; Hardyal and Prem v. State of Rajasthan, (1991) Cr LJ 345 (SC).

Appreciation of evidence

Conviction can be based on testimony of a single eye witness provided his testimony is found reliable and inspires confidence; Anil Phukan v. State of Assam, 1993 (1) Crimes 1180 (SC).

Benefit of doubt

When ocular evidence in murder case is unreliable benefit of doubt to be given to all accused; Chandu Bhai Shana Bhai Parmar v. State of Gujarat, AIR 1982 SC 1022: (1981) SCC (Cr) 682.

Blood stained article

Presence of blood stains on floor of room of house and the shawl by themselves are not such circumstances to establish the guilt of accused, grant of benefit of doubt proper; Ramesh Chandra Sao v. State of Bihar, AIR 1999 SC 1574.

Circumstantial evidence

(i) Evidence that gun of brother of deceased placed beneath pillow was removed from that place indicate participation in crime. Words uttered just before killing deceased and in manner he was killed immediately thereafter leaving no manner of doubt of murder; State of Haryana v. Pradeep Kumar, 1999 SCC (Cr) 358: 1999 (1) Crimes 8 (SC).

(ii) In cases depending on circumstantial evidence it is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path; Sarbir Singh v. State of Punjab, 1993(1) Crimes 616 (SC).

Circumstantial evidence - Importance

It is well settled that if the evidence of the eye-witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution; A.M. Kunnikoya v. State of Kerala, (1993) 1 Crimes 1192 (SC).

Constructive liability

(i) Accused charged under section 302/149 can be convicted under section 302/34; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (7) Supreme 165.

(ii) Two offences under section 302 and section 306 of the Indian Penal Code are of distinct and different categories; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.

(iii) Non-explanation of the injuries on the person of the accused by the prosecution may not affect the prosecution case if the injuries sustained by the accused are minor or superficial or where the evidence produced by the prosecution is clear and cogent and is of independent and dis-interested persons and is consistent with credit worthiness; Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).

(iv) Crime of murder committed against public servant doing official duties must be discouraged and dealt with firm hand; Gayasi v. State of Uttar Pradesh, AIR 1981 SC 1160: (1981) ALJ 441: (1981) Cr LJ 883: (1981) SCC (Cr) 590: (1981) Cr App R (SC) 385: (1981) 2 SCC 713.

Effect of acquittal of some accused on conviction of others

Though section 34 is not added to section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intentions to put an end to the life of deceased. Hence, the omission to mention section 34 in the charge had only an academic significance, and has not in any way misled the accused; Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171.

Importance of motive

(i) In dowry deaths motive for murder exists and what is re­quired of courts is to examine as to who translated it into action as motive viz., whether individual or family; Ashok Kumar v. State of Rajasthan, (1991) 1 Crimes 116 (SC).

(ii) Accused committed murder in professional manner with planned motivation, accused deserved no sympathy even when the accused had no personal motive; Kuljeet Singh v. Union of India, AIR 1981 SC 1572: (1981) Cr LJ 1045: (1981) Cr LR (SC) 328.

Intention of causing death

When the appellant dealt a severe knife blow on the stomach of deceased without provocation and when deceased was unarmed and had already been injured by co-accused the appellant cannot be held that he had no intention to cause a murderous assault by mere fact that only one blow was inflicted; Nashik v. State of Maharashtra, 1993 (1) Crimes 1197 (SC).

Medical evidence - importance

Mere variance of prosecution story with the medical evidence, in all cases, should not lead to conclusion inevitably to reject the prosecution story. Court to make out efforts within judicial sphere to know truth; Mohan Singh v. State of Madhya Pradesh, AIR 1999 SC 883: 1999 (2) SCC 428.

Mental derangement short of insanity

Where feeling life unbearable on account of domestic quarrels, a woman (accused) jumped into a well with her children, it was held that the only sentence that could be passed, was the lesser sentence of imprisonment for life; Gyarsibai w/o Jagannath v. State, AIR 1953 MB 61.

Rarest of the rare cases

(i) Undoubtedly brutality is involved in every incidence of murder but that brutality by itself will not bring it within the ambit of the rarest of the rare cases, for the purposes of the death penalty; Subhash Ramkumar Bina @ Vakil v. State of Maharashtra, AIR 2003 SC 269.

(ii) It is alleged that all the four accused expressed their resentment and held Mrs. Gandhi responsible for operation ‘Blue Star’ at Amritsar. To avenge they entered into a conspiracy to kill Mrs. Gandhi. In pursuance of the aforesaid conspiracy, two accused being security guards, who had prior knowledge that Smt. Gandhi was scheduled to go on the morning of 31st October, 1984 from her residence at Safdar Jang Road to her office at Akbar Road via TMC gate for an interview with Irish Television team, got manipulated their duties in such a way that one of the accused would be present at the TMC gate and another at TMC sentry booth between 7.00 AM to 10.00 AM. While Mrs. Gandhi was approaching to TMC gate towards her office one of the accused fired five rounds and another accused 25 shots at her from their respective weapons. Smt. Gandhi sustained injuries and fell down and succumbed to her injuries same day at the All India Institute of Medical Sciences, New Delhi. The Supreme Court confirmed the death sentence awarded by the trial Court and maintained by High Court to three appellants for entering into conspiracy and committing murder of leader under sections 302, 120B, 34, 107 and 109 of the Penal Code and held that the murder by the security guards is one of the rarest of rare case in which extreme penalty of death is called for to assassin and his conspirators; Kehar Singh v. Delhi Administration, AIR 1988 SC 1883.

(iii) On the night of 21st May, 1991 a diabolical (wicked) crime was committed. It stunned the whole nation. Rajiv Gandhi, former Prime Minister of India, was assassinated by a human bomb. With him 15 persons including a policeman perished and 43 suffered grievous or simple injuries. Assassin Dhanu one of the LTTE activist, who detonated (exploded) the belt bomb concealed under her waist and Haribabu, a photographer (and also a conspirator) engaged to take photographs of the horrific sight, also died in the blast. A camera was found intact on the body of Haribabu at the scene of the crime. Film of the camera when developed led to unfolding of the dastardly act committed by the accused and others. A charge of conspiracy for offences under TADA, I.P.C., Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933 was laid against 41 persons, 12 of whom were already dead having committed suicide and three absconded.

Out of these 26 faced the trial before the Designated Court. Prosecution examined 288 witnesses and produced numerous documents and material objects. The Court found them guilty of the offences charged against them and awarded death sentence to 21 of them on the charge of conspiracy to murder under section 120B read with section 203, I.P.C. The apex Court by a unanimous verdict set at liberty 19 accused for charges under section 120B read with section 302, I.P.C. and confirmed the death sentence awarded by the trial Court. As regards the extreme penalty of death to Nalani was concerned it was confirmed by a majority of 2 to 1. Considering the fact that she belonged to the weaker section and she was led into the conspiracy by players on her feminine sentiments, she became an obedient participant without doing any dominator’s role. She was persistently brainwashed by A3 who became her husband and then the father of her child and her helplessness in escaping from the cobweb of Sivarasan and company. The mere fact that she became obedient to all the instructions of Sivarasan, need not be used for treating her conduct as amounting to rarest of the rare cases. The President of India commuted the death sentence of Nalani to life imprisonment on humanitarian ground, as she was mother of an infant child; State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalani, AIR 1999 (5) SC 2640.

Relevant factors to ascertain murder

The basic constituent of an offence under section 302, is homicidal death; Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214.

Sentence - General

Provisions of death sentence being an alternative punishment for murder is not unreasonable; Bachhan Singh v. State of Punjab, AIR 1980 SC 898: (1980) 2 SCC 864: (1980) Cr LJ 636 : (1980) Cr LR (SC) 388: 1980 (2) SCJ 475.

Strangulation, throttling and hanging cases

Where post mortem report showed that there was ligaltive mark on the neck of the deceased wife which was anti-mortem, the opinion of the doctor was clear and definite that such ligaltive mark of 5 cm width in horizontal position could not be caused by strangulation, the medical evidence, therefore, completely pacified the case of the accused husband that on his return from the field to his house he had found his wife hanging, and thus she had committed suicide; Madhari v. State of Chattisgarh, 2002 Cr LJ 2630 (SC).

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1. Subs. by Act 26 of 1955, sec. 117 and Sch., for “transporta­tion for life” (w.e.f. 1-1-1956).