Writing Assignment Code 201074

| S No. 3 | © Dhaval Vyas 17th July 2021|

Certificate Course in Advanced Criminal Litigation & Trial
Advocacy

Analysis of Bansi v. State (NCT of Delhi)

(A) Introduction

Whether a case shall be considered a Murder with grave punishment or Culpable Homicide with
lighter punishment has been a perplexing question facing many a judges and legal analyst ! How
would one bifurcate it ? This article tries to analyze the same question and will identify pointer to help
decide the case . Bansi v/s the State (NCT of Delhi) includes several supreme court judgments which
have led to the formalization of the difference . We will look into a few cases for and against the
accused and the judgment before analyzing and concluding the case study.

(B)Facts of the Case

(i) Background:-

The case under study was first filed and sentenced conviction to the accused Mr. Bansi on 19 May, 2004,
where he was held guilty on counts of charges sec 1 & 2 302/307/324 of IPC (Indian Penal Code), and sen-
tenced to undergo the highest of the all imprisonment for life, and Rs 500 as fine payment and in default
of such payment an additional simple imprisonment of two months had to be served. All the sentences
were directed to run concurrently .

(ii) Definition Sections:-

Here I am defining the relevant provisions that have been considered to arrive at the conclusion by the
Honorable Delhi Court .

The sec 302 is murder , also called “culpable homicide amounting to murder”. For understanding it we
have to understand the definition of culpable homicide which is a larger head and murder is read under
it. 3 Sec 299 defines culpable homicide and 4 sec 300 defines murder..

5
“When culpable homicide is not murder” relevant to our case

Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight
in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage
or acted in a cruel or unusual manner.

1
(iii) Punishment Sections:-
6
sec 302. Punishment for murder.—Whoever commits murder shall be punished with death or 1 [impris-
onment for life], and shall also be liable to fine.
7
sec 304. Punishment for culpable homicide not amounting to murder.—
(relevant to our case)
Part II
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.

8
sec 307 Attempt to murder.—See IPC (Indian penal code)

9
sec 324 Voluntarily causing hurt by dangerous weapons or means—See IPC (Indian Penal Code)

(iv) Facts:-
a) Amrit Ram hereinafter called PW 1 (Prosecution Witness 1) along with Chandeshwar herein
aftercalled PW 2 (Prosecution Witness 2) was at the house of his Phoopha, Mr. Raj Kumar herein
after called the “deceased “at Basai Dara Pur.

b) At about 11 PM he was taking meal at the house of deceased, Bansi hereinafter called the accused
who was the neighbour of deceased came & took him but he returned to the house.

c) That accused again came to the house of deceased and again took deceased with him. This time
PW1 was with them

d) PW 1 has further stated that deceased and accused were consuming liquor and that thereafter an
argument took place between them.

e) The accused was locked inside his room and they bolted the room from outside. Accused started
abusing the deceased and alleged that he had illicit relations with his(accused’s) wife and would kill
the deceased and his wife.

f) Thereafter deceased went to the house of his landlord Mr. Satinder Singh hereinafter called PW 3
(Prosecution Witness 3)and brought him to the spot who tried to make the accused understand but he
did not pay any attention.
g) Upon opening the the bolt from outside by the deceased, the accused came outside the room &
stabbed the deceased with a knife on his abdomen, and also stabbed his own wife in the abdomen.
PW 1 tried to intervene, but got hurt in his left hand.

h) PW 3 took the deceased to Khetarpal Nursing Home in a car where he succumbed to his injuries
and died. Wife of accused Smt. Geeta hereinafter called PW 7 (Prosecution Witness 7) was also
admitted to Handa Nursing Home, in Delhi.

i) PW 1 in cross examination on behalf of accused denied that the deceased had any illicit
relations with PW 7. PW 1 agreed of being present at the spot at the time of the incident and
denied to have misbehaved with PW 7, injuring or tearing her clothes.

j) PW 2 has also supported the case of the prosecution on all the material points and had confirmed
the deposition of PW 1 in all the material particulars. Although he has also been cross examined on
behalf of accused, yet nothing material came out from his mouth which may help the accused.

k) PW 3 also supported the prosecution case on all the material points except the fact that he
cannot say how the deceased received injuries. However he had agreed to have the knowledge
from the deceased of been hit by the accused with knife on his abdomen.

l) PW 3 had neither seen the accused causing injuries to deceased nor seen him causing injuries to
his oen wife PW 7 and had not made any such statements to the police.

m) PW 3 turned hostile and was cross examined, wherein he denied all suggestions made by the Ld.
Addl. PP for the State. No cross was done by the accused counsel for the cross. I t remains un-
challenged on record that deceased had told him that deceased had been hit by accused with
knife on his stomach.

n) PW 7 Smt. Geeta the wife of accused. did not support the prosecution case, turned hostile and was
cross examined by the Ld. Addl. PP for the State. She denied of her husband Bansis’ stabbing the
deceased and herself while intervening. She also denied of her husband suspecting her of having
illegal relations with the deceased. In her examination in chief she has stated that deceased
removed her clothes forcibly and deceased committed rape with her.

o) Inspector SS Jakhar hereinafter referred to as PW 15 (Prosecution witness 15) statedthat PW7 did
not disclose about any rape and during the inquiry it came to his knowledge that accused had
suspected his wife having an illegal relation and it could be the motive of murder. He has also
admitted as correct that it was the reason for murder of deceased .PW 15 did not receive any
complaint from any of the partybefore this incident as per the statements of PW 3 and PW 7 . Also,
PW 7 did not allege anything about the rape. Plea of the accused Bansi appears to be an after thought.

p) The testimonies of PW 1 and PW 2 appear to be quite natural, reliable and trustworthy, had no
reason to depose falsely & implicate the accused. The mere fact that PW 1 is the relative of deceasedis
not sufficient to discard his testimony. PW 2 had also stated that the deceased was not his relative.

q) The sentence of the appellant was suspended vide order dated 26 September, 2006. The appellant has
undergone sentence for five years and one month and earned a remission for nine months and twenty-
five days.

1
SCC CRL.A. 589/2004 ;
2“
Bansi vs the state ( NCT of Delhi) on 9th May, 2019”https://indiankanoon.org/doc/184478007/
3 , 4, 5 ,6, 7, 8 & 9
“THE INDIAN PENAL CODE , 1860”, “Indian Penal Code - Legislative Department”, SEC 420 &
120B IPC, viewed on Wednesday, June 16th, 2021, https://legislative.gov.in/sites/default/files/A1860-
45.pdf
 (C)Issues Raised in the Case

(i) Issues Raised:-

On 01 May, 2019, the counsel for the original accused made a statement before the hon’ble Delhi Court
of having instructions not to address arguments on merits of the case, but on the order on sentence
only. He had stated that it was a proper case to convert the conviction under Section 302 IPC into
Section 304, Part-II IPC.

(ii) Arguments for accused :-

The counsel states that there was a sudden and instant heated argument without previous knowledge
or planning between the original accused and the deceased, while consuming liquor, on the issue of
suspected illegal relationship between the deceased and the wife of the appellant,causing an attack of
single blow upon the deceased in the heat of passion with a small kitchen knife, which was already
available in the room along with other utensils.

The original accused had neither taken undue advantage nor acted in a cruel or unusual manner towards
the deceased. As he was locked inside a room by PW-1 and PW-2 he had no opportunity to take any
advantage.

The weapon used was a small vegetable knife, such that the accused could not have any knowledge that
its single blow could prove fatal for the deceased.

The accused was about 50 years old and the sole earning member of his family consisting of dependant
wife and three children.

The current case is beyond the scope of Section 300 IPC and at best the accused/appellant could have
been convicted under Section 304 Part-II IPC.

The counsel for the accused relies upon the following judgments to prove his case:-
a) 10 Muthu v. State by Inspector of Police, Tamil Nadu, (2009) 17 SCC 433;
Held:- Upon referring Exception 4 to Section 300 IPC —the present case also comes under Exception 4 to
Section 300 IPC since the ingredients of Exception 4 are all satisfied in the facts under the second part in
view of the decisions of this Court .In this case the Hon’ble Supreme court relied upon 12 other supreme
court cases proving their point.

b) 11 Behra v. State of Rajasthan, (2000) 10 SCC 225 ;

Held:- According to the facts of the case, it is difficult to hold that the accused gave the blow with the
requisite intention of causing murder of the deceased. Therefore the conviction of the appellant under
Section 302 cannot be sustained. instead the offense would be one under Section 304 Part II.”

c) 12 Kunhayippu v. State of Kerala, (2000) 10 SCC 307

Held:-In the given circumstances, “it is difficult for us to hold that the accused can be said to have had
the necessary intention for causing the murder of the deceased while giving the blow though eventually
it turned out to be fatal.” The conviction was set aside under Section 302 and Section 304 Part II was
applied sentencing an imprisonment for 5 years.

(iiI) Arguments against the accused :-

That the chief preconditions for application of Exception 4 to Section 300 IPC read with Section 304 Part-
II are that there must be a mutual combat or sudden fight which is missing in the present case.

To prove the argument the counsel , submits the following Supreme court judgments:

13
Kikar Singh v. State of Rajasthan; (1993) 4 SCC 238 : AIR 1993 SC 2426
Held:- There must be a mutual combat or exchanging blows on each other as a consequence of a sudden
fight and not one side attack. If two men start fighting and one of them is unarmed while the other
uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage
denying him the benefit to exception 4. It is just not the quantum of injuries, but the position of the
accused and the deceased with regard to their weapons, the mannerof fight all must be considered while
applying exception 4. Thus any undue advantage caused will amount to murder.

14
Pandurang Narayan Jawalekar v. State of Maharashtra (1979) 1 SCC 132 : (AIR 1978 SC 1082)
Held:- If it is shown that the injury caused is a cruel one, even if there was no planning , and a sudden
provocation caused the ensuing fight, the benefit of exception 4 could not be taken. The conviction for
offence under S.302 by the High Court reversing the acquittal by trial court was upheld.

10
Muthu v. State by Inspector of Police, Tamil Nadu, (2009) 17 SCC 433;
11 “
Behra v. State of Rajasthan, (2000) 10 SCC 225
12
c)Kunhayippu v. State of Kerala, (2000) 10 SCC 307
13
Kikar Singh v. State of Rajasthan; (1993) 4 SCC 238 : AIR 1993 SC 2426
14
Pandurang Narayan Jawalekar v. State of Maharashtra (1979) 1 SCC 132 : (AIR 1978 SC 1082)
 Writing Assignment Code 201074
| S No. 3 | © Dhaval Vyas 17th July 2021|
Certificate Course in Advanced Criminal Litigation & Trial
(D) JudgementAdvocacy
of the Court

The judgment in this case was given after considering the following supreme court observation ,
guidelines and precedent cases :-

Whether the offence falls under the purview of Section 304 Part-I
In 15 Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444
The Supreme Court laid down the following conditions which may throw light on the question of
intention such as:-
(i) nature of the weapon used;
(ii) whether the weapon was carried by planned action or was picked up on the spot ;
(iii) whether the blow targeted any vital part of the body;
(iv) the amount of force which causes injury;
(v) whether the act was due to sudden quarrel or fight ;sudden provocation,and what caused
such provocation
(vi) whether the act was planned and preparations made;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether it was in the heat of passion;
(ix) whether any undueadvantage taken;
(x) if the cat was in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.

16
Chacko @ Aniyan Kunju v. State of Kerala (2004) 12 SCC 269
Held:- All “murder” is “culpable homicide” but not vice versa.. For fixing punishment, proportionate to
the seriousness of the offense, IPC determines three degrees of culpable homicide.
(i)Grave offenses are clubbed under “culpable homicide of the first degree” such as Section 300 “murder”;
(ii)The second termed as “culpable homicide of the second degree” punishable under the first part of
Section 304 ; and
(iii) “culpable homicide of the third degree” punishable under the second part of Section 304.
17
Shiv Kumar v. State (NCT) of Delhi 2014 (2) JCC 1282,

Held:- In 18 Mahesh Balmiki v. State of MadhyaPradesh, (2000) 1 SCC 310, following requirements if
satisfied, culpable homicide will not amount to murder.”according to Exception 4 to Section 300 IPC
:-
(a) without any planning before the act /premeditation in a sudden fight;
(b) in the heat of passion upon a sudden quarrel;
(c) the offender has not taken undue advantage; and
(d) the offender has not acted in a cruel or unusual manner.
19
Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 : AIR 2013 SC 2454: 2013 Cri LJ
3044; Held:- Whethertheaccused acted in a cruel or unusual manner, we must consider the actions before
and after the crime. The crime itself may be said to have been committed suddenly in the heat of the
moment, but his act of fleeing immediately after committing the offense and later in- forming the police
and requesting them to send an ambulance to the location must be considered. As nothing unusual can be
found in his actions, there was no premeditation, and he cannot be said to have taken undue advantage.

6 6
 15
Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444
16
Chacko @ Aniyan Kunju v. State of Kerala (2004) 12 SCC 269
17
Shiv Kumar v. State (NCT) of Delhi 2014 (2) JCC 1282
18
Mahesh Balmiki v. State of Madhya Pradesh, (2000) 1 SCC 310
19
Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 : AIR 2013 SC 2454: 2013 Cri LJ 3044;

This Court has gone through the evidence on record and is of the view that appellant/original accused
is the perpetrator who had stabbed the deceased causing his death. The absence of intention to
cause death due to the sudden argument and fight ,under the influence of alcohol , on the issue of
alleged illegal relationship between the deceased and wife of accused appellant raised the temper of
the appellant whogave a single blow to the deceased and also to his wife in the lower abdomen with a
small vegetable knife .

There was clear absence of planning and intention on the part of the accused appellant as the kitchen
knife was found in the room where he was confined upon being violently abusive, which apparently is the
murder weapon which caused the fatal injury.

Considering all the facts of the case and the evidence , statements and documents adduced in the court
the court is of the view thatappellant is entitled to benefit of Exception 4 to Section 300 IPC and to be
convicted under Section 304 Part-II IPC. To give proper justice the accused / appellant is sentenced to
seven years rigorous imprisonment under Section 304 Part-II IPC. with fine .

The offense of attempt to murder under sec 307 due to stabbing his wife is upheld but reduced to seven
years rigorous imprisonment, while keeping up the fine imposed by the learned Trial Court.
The accused/appellant is permitted to surrender before the Trial Court within four weeks to serve out
the remainder of his sentence. Both the sentences shall run concurrently and benefit of Section 428
Cr.P.C. stands granted.

(E) Analysis

When ever the decision has to be made as to whether culpable homicide amounts to murder or does not
amount to murder , the guidelines as per whether there is intention , preparation , attempt , and
commis- sion of an offense, the basic principle in any crime as per law has to be checked. However apart
from that one has to see factors before and after crime , premeditated intention , planning involved ,
whether there is cool head, amount of cruelty used, whether any undue advantage is used or any
unusual manner to convert culpable homicide amounting to murder to part II not amounting to murder.
One also has to follow the guidelines of various Supreme Court and High Court Judgments and apply to
the situation at hand and arrive at a conclusion after careful analysis , such that no innocent person is
held liable to a crime more then he can be held accountable for. The degree of crime , the nature of
offense , the type of weapon , all contribute towards arriving at this decision.

Even in the current case the , person was locked and in an in drunken state ,found a knife from the room
and in a fit of anger stabbed the deceased. This shows his non intention ,lack of preparation , though
there were attempt to kill his wife and actual act of stabbing , making it not a carefully crafted , cruel act
and
therefore with all the previous judgments in similar situation the judge rightfully converted it to part II
culpable homicide not amounting to murder , set off the punishment already under went and , also the
trial period lasted almost 14 years which is more then the single largest punishment of 10 years and
there- fore keeping in track the past history , and current family life , the economic status and the lives
of de- pendant family members , the correct term of sentencing awarded.

(F) Current Position of the Case

Currently at the directions of the court , present appeal stands disposed of. Copy of judgment be sent to
Trial Court for compliance. Copy of judgment be also given to the appellant. As the case is decided as of
May 9th 2019, there are no newer case neither any fresh updates on the current position of the case .

(G) Conclusion

Thus there are various precedent value higher court judgments , both of supreme courts and High
court , which tries to explain the complex concept of culpable homicide amounting to murder and not
amount- ing to murder. We just need to identify the facts of the case and the main issues along with
the appli- cation of the Indian Penal Code for proper identification of offenses and the courts could use
their wisdom to identify the sentences after proper investigation , inquiry , proceedings and trial . The
burden of proof is very high in criminal cases , and can be the difference between liberty, life and
death of an individual ,on the one side and the possibility of serious offense be passed off as trivial ,
which can be counter productive to the legislative intent.

Therefore , these cases helps us understand the complexities and ensure rule of law is maintained.