LexMD. RAFIQUE @ CHACHU versus STATE OF WEST BENGAL
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[2008] 16 S.C.R. 523 MD. RAFIQUE @ CHACHU v. STATE OF WEST BENGAL (Criminal Appeal No.828 of 2008) NOVEMBER 21, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860: s.302 - Prosecution under ss. 302 & 398 - Eye- witnesses to the occurrence injured - Corroboration by medical evidence - Conviction by trial Court - High . Court confirming conviction u/s 302 and acquitting the accused ul A B c s 398 - On appeal, held: Conviction· uls 302 is justified and o is not liable to be altered uls 304. s.300 C/ause(3) - Scope of....: Discussed.; .. ss. 299 and 300 - 'Culpable Homicide' and 'murder' - . Distinction between - Discussed. E Concession - Concession made before Court - In appeal, party denying to have made such concession - Held: Concession cannot be challenged before appellate court - Grievance against the same to be made· to .the ju,dg.e before F whom the concession was made. Appellant~accused al!>ngwith ot .he.r~ were · prosecuted ulss 302 and 398 IPC for having caused death of one and causing inju~ies to two perso11s. Prosecution case wa·s that the accused persons went-to . G the shop of the deceased, armed with weapons and asked for key of the cash box. On refusal, appellant shot at. the deceased and thereafter alongwith other accused assaulted him. They also assaulted the two sons of the 523 · H 524 SUPREME COURT REPORTS [2008] 16 S.C.R. . A deceased. Trial court convicted the appellant-accused u/ s 302 and 398 IPC. In appeal before High Court, the appellant conceded that from the evidence of FIR maker and from the 8 evidence of other witnesses, it was established that the appellant was physically present at the shop room and he assaulted the deceased with fire arm. However, he contended. that there was . scope to raise a doubt as to whether the appellant shot at' the deceased with the C intention of causing his death and hence case u/s 302 was not made out; and tllat there was also no scope for conviction u/s 398 IPC. _High Court confirmed the conviction u/s 302 IPC while ~cquitted the appellant u/s 398 IPC; D E In appeal to this Court, appellant-accused contended that no offence u/s was made out; that there was no identification of the appellant; and that High Court erroneously recorded certain concessions, which in fact were not made. Dismissing the appeal, the Court HELD: 1.1. The accused appellant shot at the deceased from his fire arm as a result of which he sustained grievous injuries and died in the hospital. T)l'ere F are two eye witnesses to the occurrence i.e . . PWs 12 and 24. They are sons of the deceased and had sustained injuries in the incident. The doctor PW-22 had stated that death was due to the -effect of the gun shot injury. There is no merit in the plea that the offence is not covered by G Section 30~ IPC. [Paras 21, 22, 23 and 24) [538-F, G; 539- H D]· . 1.2. The Judicial Magistrate who c·onducted· the Test ldentificatjo11 ·Parade h~s cfarifiedthe position". "It has been stated that on 7 .10.1996 there co.uld not be 'i(tentification ' -. - . " ' -- - .. . ·. . MD. RAFIQUE @ CHACHU v. STATE OF Y\fEST BENGAL 525 '1 of the present appellant because the wrong person was A put in the Tl Parade. The real suspect, i.e. the appellant was not put in Tl Parade and this aspect has been noted in the report relating to Tl Parade. Subsequently, Tl Parade was held where the appellant was identified. [Para 19] [538-D] B 2.1. In the scheme of the IPC culpable homicide. is genus and 'murder' its specie. All 'murders' are 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of c 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, D which is defined in Section 300 as 'murder'. The second may be termed as 'culpable ho.micide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the E punishment provided for 1t is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is p
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