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CASE NAME: NANHE  VERSUS STATE OF U.P.

CASE NUMBER: CRIMINAL APPEAL NO. 2791OF 2023.

DATED ON: NOVEMBER 21, 2023

QUORUM: HON’BLE JUSTICE ABHAY S. OKA & JUSTICE PANKAJ MITHAL

FACTS OF THE CASE:

On 30.05.2007, an incident occurred in a market area, resulting in injuries and a death of Mahendra Hussain, son of Mohd. Ali. Two cases were registered against the accused, Nanhe, under Section 304 and 308 IPC and Section 25 of the Arms Act, 1959. Both cases were tried as Sessions Trial Nos. 1097 of 2007 and 1212 of 2007 by Special Judge, S.C./S.T.(P.A.) Act,1989. The trial court found Nanhe guilty of Section 302 IPC and sentenced him to life imprisonment with a fine of Rs.5000/-.

The High Court affirmed the conviction and sentencing of the accused in criminal appeal No.4474 of 2010, which was filed by the accused in both cases. The accused has appealed against the High Court’s judgment and order through this appeal, highlighting the single appeal filed by the accused against his conviction.

ISSUES RAISED:

• Whether the said offence is liable to be reduced to culpable homicide not amounting to murder falling under second part of section 304 IPC.
• Whether the offence committed in the state of intoxication can be taken into consideration for convicting the same .
• Whether the known level of intoxication can be determined factor in convicting the accused.

LEGAL PROVISIONS:

INDIAN PENAL CODE

• Section-86: Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

• Section-301: Culpable homicide by causing death of person other than person whose death was intended. – If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender of the person whose death he intended or knew himself to be likely to cause.

• Section-302: Punishment for murder – Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

• Section-304: Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
• Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

CONTENTION OF APPELLANT:

The learned counsel for appellant argues that the deceased’s death was accidental, not intentional. The appellant was heavily intoxicated and unaware of his actions. The incident occurred on 30.05.2007 when Mohd. Ali, his son, and his son, Saddam Hussain, argued. Sant Ram, Mahendra’s brother, intervened and asked Nanhe to leave. Nanhe fired a shot, piercing Mahendra’s neck and killing him. Saddam was taken to a hospital where he died.

CONTENTION OF RESPONDENT:

The counsel for the respondent argues that the action of the Nanhe (appellant) which inflicted to the death of Saddam Hussain was intentional and not accidental. The appellant was  arguing with Mahendra and then, the Sant Ram intervened and asked appellant to leave the place. After walking 15 -20 steps he moved back and fired with his country made pistol   in the state of intoxication, which shows the clear intention of the appellant to murder.

COURT’S ANALYSIS:

Saddam Hussain died from a firearm shot received in his neck, fired from a country-made pistol owned by appellant Nanhe. The weapon and cartridges were recovered from him. The trial court and High Court concluded that Nanhe is guilty of an offense under Section 302 IPC. The question is whether the offense can be reduced to culpable homicide, not murder, under Section 304 IPC, given Nanhe’s intention to settle his score with Mahendra and the impact of his intoxication at the time of the incident.

The appellant argued that he had no intention to kill the deceased and was accidentally killed, despite firing a shot on Mahendra, a person he had a quarrel with earlier. Section 301 of the Indian Penal Code (IPC) is relevant, as it embodies the doctrine of transfer of malice or transmigration of motive. The court in Shankarlal Kacharabhai & Ors Vs. The State Of Gujarat, AIR 1965 SC 1260 stated that to invoke Section 301, an offender must not have any intention to cause the death or knowledge of the potential harm.

In Rajbir Singh vs. State of U.P. and Anr., (2006) 4 SCC 51, the court ruled that the High Court’s decision to set aside a Special Judge’s order based on the fact that the shooting was not aimed at the victim and he was accidently injured was in ignorance of Section 301 IPC. In Jagpal Singh Vs. State Of Punjab, AIR 1991 SC 982, the court ruled that the accused was punishable under Section 302 IPC (simplicitor) under the ‘Doctrine of Transfer of Malice or Transmigration of Motive’ under Section 301 IPC.

The appellant is found guilty of culpable homicide under section 302 IPC, based on the doctrine of transfer of malice or transmigration of motive. The offence was committed by a person under intoxication and incapable of understanding the nature of their act. The court ruled in Basdev Vs. State Of Pepsu, AIR 1956 SC 488, that if no evidence shows an accused’s incapacity to understand their actions due to intoxication, the killing would be an offence of murder.

The incident occurred due to a quarrel between the appellant and Mahendra, with which Saddam was killed. Hussain had no connection to the firing, but Saddam was killed by accident. The appellant may have accidentally killed Saddam intoxicated, but there is no evidence to prove he was incapable of knowing the nature of his act or that it was dangerous enough to cause death. Therefore, Section 86 IPC would not apply and Hussain would not be entitled to a reduction of his sentence.

JUDGEMENT:

In view of the aforesaid facts and circumstances, we find no illegality in the impugned judgment and order of the High Court in confirming the conviction and punishing the appellant under Section 302 IPC.

The appeal is devoid of merit and is accordingly dismissed with no order as to cost. The appellant can apply for remission under the current state policy, which the State is expected to consider on its merits promptly.

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Click here to view the full judgement: NANHE VERSUS STATE OF U.P.

JUDGEMENT REVIEWED BY: ABHISHEK SINGH