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CASE NO.: Appeal (crl.)  1304 of 2007

PETITIONER: Bhagwan Bahadure

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1304 OF 2007 (Arising out of SLP (Crl.) No. 3196 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.           2.      Challenge in this appeal is to the judgment of a Division  Bench of the Bombay High Court, Nagpur Bench upholding  the conviction of the appellant for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  and sentence of imprisonment  for life and fine of Rs.1,000/-  with default stipulation. 3.      Background facts in a nutshell are as follows:

On 13th March, 2000 Bhagwan Bahadure came to  Bhendala and stayed with Kachrabai (hereinafter referred to  as the ’deceased’), who was residing with her mother Tuljabai  (PW-7).  In the morning, of the day of incident, the appellant  started quarrelling with the deceased on a flimsy ground.  The  appellant asked her to accompany him to his house.  It is  alleged that the appellant, who had a stick in his hand,  assaulted the deceased by means of the stick.  The deceased  fell down on the ground.  The appellant gave a blow with the  stick on her head, whereby deceased suffered serious injuries  and became unconscious.  The appellant thereafter threw the  stick and ran away towards bus stand. Sidharth (PW 1)  witnessed the incident.  He went to the roadside for bringing a  jeep to carry his mother to the hospital at Pauni.  The Medical  Officer gave first-aid to the victim as the injuries were severe  and she was unconscious.  The Medical Officer advised the  family members to take her to the Govt. Medical College,  Nagpur.  In the meanwhile, PW 1 lodged a report in the police  station against the appellant.  Police registered a crime.  Deceased succumbed to the injuries on way to the hospital at  Nagpur.  

4.      Considering the evidence of PWs 1,7 & 8,  trial court  found the evidence to be credible and cogent and accepted the  same.  He did not find any substance in the plea of the  appellant that PWs 1 & 7 were related to the deceased and,  therefore, their evidence could not be acted upon.  It also did  not accept the plea that offence under Section 302 IPC was not

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made out. Questioning the correctness of the trial court’s  order, appeal was preferred before the High Court which as  noted above did not find any substance in the appeal.   

5.      The stand taken before the trial court and the High Court  was reiterated in this appeal.

6.      Learned counsel for the State on the other hand  supported the judgment.

7.      We shall first deal with the contention regarding  interestedness of the witnesses for furthering prosecution  version.  Relationship is not a factor to affect credibility of a  witness.  It is more often than not that a relation would not  conceal actual culprit and make allegations against an  innocent person.  Foundation has to be laid if plea of false  implication is made.  In such cases, the court has to adopt a  careful approach and analyse evidence to find out whether it is  cogent and credible.

8.      In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953  SC 364) it has been laid down as under:-

"A witness is normally to be considered  independent unless he or she springs from  sources which are likely to be tainted and that  usually means unless the witness has cause,  such as enmity against the accused, to wish to  implicate him falsely.  Ordinarily a close  relation would be the last to screen the real  culprit and falsely implicate an innocent  person.  It is true, when feelings run high and  there is personal cause for enmity, that there  is a tendency to drag in an innocent person  against whom a witness has a grudge along  with the guilty, but foundation must be laid  for such a criticism and the mere fact of  relationship far from being a foundation is  often a sure guarantee of truth.  However, we  are not attempting any sweeping  generalization.  Each case must be judged on  its own facts.  Our observations are only made  to combat what is so often put forward in  cases before us as a general rule of prudence.   There is no such general rule. Each case must  be limited to and be governed by its own  facts."

9.      The above decision has since been followed in Guli  Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in  which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)  was also relied upon.

10.     We may also observe that the ground that the witness  being a close relative and consequently being a partisan  witness, should not be relied upon, has no substance.  This  theory was repelled by this Court as early as in Dalip Singh’s  case (supra) in which surprise was expressed over the  impression which prevailed in the minds of the Members of the  Bar that relatives were not independent witnesses. Speaking  through Vivian Bose, J. it was observed:  

"We are unable to agree with the learned  Judges of the High Court that the testimony of

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the two eyewitnesses requires corroboration.   If the foundation for such an observation is  based on the fact that the witnesses are  women and that the fate of seven men hangs  on their testimony, we know of no such rule.   If it is grounded on the reason that they are  closely related to the deceased we are unable  to concur.  This is a fallacy common to many  criminal cases and one which another Bench  of this Court endeavoured to dispel in \026  ’Rameshwar v. State of Rajasthan’ (AIR 1952  SC 54 at p.59).  We find, however, that it  unfortunately still persists, if not in the  judgments of the Courts, at any rate in the  arguments of counsel."

11.     Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC  202) this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to  contend that evidence given by witnesses  should be discarded only on the ground that it  is evidence of partisan or interested  witnesses.......The mechanical rejection of  such evidence on the sole ground that it is  partisan would invariably lead to failure of  justice.  No hard and fast rule can be laid  down as to how much evidence should be  appreciated.  Judicial approach has to be  cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

12.     To the same effect is the decision in State of Punjab v.  Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana  (2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of  Orissa (2002 (8) SCC 381).  

13.     The above position was highlighted in  Babulal Bhagwan  Khandare and Anr. V. State of Maharashtra [2005(10) SCC  404] and in Salim Saheb v. State of M.P.  (2007(1) SCC 699).

14.     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 gravest 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.

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15.     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 caused is done-        culpable homicide is murder                                                                if the act by which the                                                          death is caused is done -

INTENTION

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

16.     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

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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.

17.     Clause (b) of Section 299 does not postulate any such  knowledge 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" means that death will be the "most probable"  result of the injury, having regard to the ordinary course of  nature. 18.     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.

19.     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.

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20.     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. 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."

21.     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."

22.     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

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nature, was sufficient to cause death, viz., that the injury  found to be present was the injury that was intended to be  inflicted.

23.     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.

24.     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 \026 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 by the offender without any excuse for  incurring the risk of causing death or such injury as aforesaid.

25.     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.

26.     The position was illuminatingly highlighted by this Court  in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.  (1976 (4) SCC 382), Abdul Waheed Khan @ Waheed and Ors.    v. State of Andhra Pradesh (JT 2002 (6) SC 274), and  Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472)  and Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).

27.     Keeping the aforesaid legal principles in view, the factual  position is to be examined. It cannot be said as a rule of  universal application that whenever one blow is given Section  302 IPC is ruled out. It would depend upon the facts of each  case. The weapon used, size of the weapon, place where the  assault took place, background facts leading to the assault,  part of the body where the blow was given are some of the  factors to be considered.  

28.     Considering the background facts involved, the  appropriate conviction would be under Section 304 Part I IPC,  and conviction is accordingly altered.  Custodial sentence of  10 years would meet the ends of justice.

29.     The appeal is allowed to the aforesaid extent.