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CASE NO.: Appeal (crl.)  854 of 1996

PETITIONER: Augustine Saldanha                                               

RESPONDENT: Vs. State of Karnataka                                               

DATE OF JUDGMENT: 26/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

[With Criminal Appeal No. 1734 of 1996]

ARIJIT PASAYAT, J.

        These two appeals relate to the common judgment of Karnataka High  Court whereby the judgment of acquittal passed by the Trial Court was  set aside. Augustine Saldanha- appellant in Criminal appeal no.854/1996  was held guilty of offence punishable under Section 302 of Indian Penal  Code, 1860 (in short ’IPC’) and sentenced to undergo imprisonment for  life.  Rocky Saldanha-appellant in Criminal appeal no.1734/1996 was  found guilty for offences punishable under Section 324 IPC and  sentenced to undergo imprisonment for one year. They were also  sentenced to pay fine of Rs.5,000/- and Rs.1,000/- respectively with  default stipulation of six  months SI and one month SI respectively.   Accusations which formed foundation of prosecution version are  essentially as follows:

On 17.5.1989 Paul Saldanha (hereinafter referred to as ’the  deceased’) and Felix Saldanha (PW1) were returning to their houses  after viewing a movie.  When they reached near the house of the  appellants, accused Augustine and Rocky along with Henry Saldanha  (acquitted) assaulted the deceased. They were armed with sticks.  As a  result of the assaults the deceased breathed his last while PW1  suffered grievous injuries.  The incident took place between 10.00 to  10.30 p.m. On next day morning around 5.15, PW8 ASI, of Mulki Police  Station received information from an unknown person of Kumeri that two  bodies were lying at Shadguri of Aikala village. Though he could not  ask the name and address of the informant, he made entries in the  General Diary and proceeded to the spot along with other police  personnel.  At the spot he found dead body of the deceased and PW1 in  injured condition. They were taken to hospital and complaint (Exhibit  P-1) was recorded. PW8 registered the FIR after coming to the police  station, and dispatched the same to the Magistrate at Mulki which was  received at about 11.15 a.m. Investigation was undertaken on the basis  of the report of PW1, and after completion thereof charge-sheet was  placed.  It needs to be noted that on the basis of information given by  the accused while in custody recoveries were made. In the complaint  (Exhibit P-1) the informant PW1 had stated that he could see assailants  by focussing a torch. He had lost consciousness temporarily, but when  he was in sense, could hear that PWs 3 and 4 i.e. two taxi drivers were  asked by the accused to shift him and deceased to different places; but  they refused to do so.  In Court, apart from the evidence of PW1 the  evidence of PWs 3 and 4 were also tendered and pressed into service to  substantiate the accusations. The Additional Sessions Judge of Dakshina

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Kannada, Mangalore found the evidence of PW1 to be not believable and  directed acquittal, and the circumstances which weighed with him are as  follows:

Credibility of the report (Exhibit P-1) was doubted because the  injury sustained by PW1 was so serious that he was given treatment in  the emergency room and it was highly improbable that he would have been  in a position to give statement  (Exhibit P-1). While PW8 stated that  he had  recorded the complaint, handwriting therein was similar to  those in which Exhibits P-8 to P-10 (Panchnamas) were written.  Prosecution version was also doubted because PW2 stated at one place  that PW1 had been taken out of the hospital at the time of spot  inspection, he stated subsequently that PW1 was not taken out. The  evidence of PW1 was also discarded on the ground that there were  exaggerations and improvements and there was no specific mention about  identification by torch and moonlight in Exhibit P-1 as was stated in  Court. Only in the first information report, it was mentioned that  witness was holding a torch. He also found that the recovery of the  torch from the spot was doubtful. It was also noted that the torch was  broken and PW1 did not say as to how the torch was broken. The Trial  Court doubted the version of PW1 because no explanation was given as to  how his shirt was torn and this indicated that there was some violence.  The Trial Court noted that PW1 did not specifically say as to why PWs 3  and 4 declined to take the dead body of deceased and PW1 to a different  place, though PWs 3 and 4 gave details in Court.  Another circumstance  to doubt the version of PW1 was that there were several injuries on the  body of the deceased, and the PW1, while PW1 stated that one blow each  was given to the deceased and to him. With these findings the Trial  Court found the accused persons not guilty and they were acquitted.  In  appeal, the High Court found that each of the reasons given by the  Trial Court suffered from vulnerability. The High Court found that  evidence of PW1 was credible and cogent. So far as injuries on the  deceased and PW1 are concerned, it was noted that doctor had stated  that several injuries were possible because of one blow.  In case of  PW1 one injury related to complaint of pain on the leg. When PW1 had  stated specifically about the torch in Exhibit P-1, the mere fact that  there was non-mention of moonlight was not good enough to discard the  evidence as unreliable.  Similarly, even if torch was broken it was not  necessary for PW1 to explain how it was broken. Evidence was that he  had fallen down after receiving the blow on the head. It was also  noticed that PW2-doctor’s evidence did not affect the credibility of  prosecution evidence that PW1 was taken to the spot, in view of what  had been indicated by the doctor in his evidence and as borne out by  documents. Merely because PW1 had not indicated in Exhibit P-1 as to  why PWs 3 and 4 did not want to take deceased and PW1 in their  respective taxies that cannot be considered to be a vital omission.  In  fact evidence of PWs 3 and 4 clearly establish the role of accused  persons and the veracity of prosecution version. With these findings  accused Augustine Saldanha was convicted and sentenced by Additional  Sessions Judge under Section 302 IPC as aforesaid.  Similarly,  considering the nature of the injuries sustained by PW1, accused Rocky  Saldanha was sentenced to undergo one year imprisonment as noted above  for offences punishable under Section 324 IPC.   

In support of the appeal learned counsel has submitted that the  Trial Court had correctly appreciated the evidence and the High Court  was not justified in reversing the findings. It was quite improbable  that PW1 identified the accused persons in the dark night.  The  injuries found on the body of the deceased and PW1 do not tally with  the version as stated by PW1 in his evidence.  

The evidence of PW1 and PW8 suffers from many infirmities. For  example, as to how PW1 who was in unconscious condition could be able  to give a report without any medical aid, is not explained. Residually,  it was argued that one blow was given in the dark night and it would

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rule out application of Section 302 IPC.

In response, learned counsel for the State submitted that the  High Court has analysed the evidence in detail and found the acquittal  not justified. The circumstances which weighed the Trial Court are not  germane and the High Court has rightly held that the conclusions were  erroneous. The analysis made by the High Court suffers from no  infirmity and the conclusions are, therefore, in order. Minor and  trifle circumstances were magnified by the Trial Court as rightly  observed by the High Court.  

We find that the High Court has analysed the evidence in great  detail, and concluded that Trial Court’s conclusions were fallacious  and based on magnification of trifle and unimportant materials, which  in no way affected credibility of prosecution version.  We find no  deficiency in view taken by High Court.     The High Court was, therefore, justified in holding that  Augustine Saldanha and Rocky Saldanha were responsible for the death  and injury to the deceased and PW1 respectively.   

The only other point which needs to be considered is whether  Section 302 IPC has been rightly made applicable.     

This brings us to the crucial question 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 greatest 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 homicide 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.

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 if the act by which the death is                culpable homicide is  murder  caused is done â\200\223                                        if the act by  which the                                                          death is caused is done -

INTENTION

(a) with the intention of causing               (1) with the  intention of

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   death; or                                   causing death; or

(b) with the intention of causing               (2) with the  intention of      such bodily injury as is likely     causing such  bodily injury           to cause death; or                             as the offender  knows 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

KNOWLEDGE ****

(c) with the knowledge that the act      (4) with the  knowledge that          is likely to cause death.                      the act is 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.     

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.

Clause (b) of Section 299 does not postulate any such knowledge

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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 fist  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" 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 Section  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.

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 Anr.  v. State of Kerala, (AIR  1966 SC 1874) is an apt illustration of this point.

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.

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 investigations. 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.

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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."

The learned Judge explained the third ingredient in the following  words (at page 468):

"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 opposite conclusion."

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. 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.

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 particular person or persons  â\200\223 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

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by the offender without any excuse for incurring the risk of causing  death or such injury as aforesaid.

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 intertwined 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.

The position was illuminatingly highlighted by this Court in  State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC  382) and recently in Abdul Waheed Khan @ Waheed and Ors.   v. State of  Andhra Pradesh (JT 2002 (6) SC 274).

Undisputedly the incident took place in a dark night when  visibility was poor but identification was possible because the victims  of the assailants were known to each other.  Therefore, there is  nothing wrong in PW1 identifying the accused persons. The fact remains  that in the dark night obviously one cannot move without a torch or  some other lighted object. In fact, in Exhibit P-1 also there is  mention of a torch.

It needs to be noted that only one blow was given in the dark  night. Though it cannot be said as a rule of universal application that  whenever one blow is given application of Section 302 IPC will be ruled  out and that even a single blow delivered with a heavy or dangerous  weapon on a vital part of the body would make the offence a murder. On  the peculiar facts found in the present case, we feel that clause  ’Thirdly’ of Section 300 cannot be applied. The blow was said to have  been delivered with a stick and in a pitch dark night of time in the  forest surroundings of the area where it occurred. It could not  reasonably be stated with any certainty that the accused chose that  vital part of the body to inflict the injury and that the blow was  aimed without any of such specific intention could have landed on the  head due to so many other circumstances, than due to any positive  intention also. We, therefore, alter the conviction of appellant  Augustine Saldanha from Section 302 IPC to Section 304 Part II.  Custodial sentence of eight years would meet ends of justice. His  appeal is accordingly allowed to the indicated extent. So far as  appellant Rocky Saldanha is concerned, in view of the detailed analysis  made by the High Court, we do not find any interference with his  conviction or the sentence imposed. His appeal is dismissed.  The  accused persons who are on bail, are directed to surrender to custody  to serve remainder of their sentences.