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CASE NO.: Appeal (crl.)  595 of 2008

PETITIONER: Daya Nand

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 03/04/2008

BENCH: Dr.  ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.  595        OF 2008 (Arising out of SLP (Crl.) No.4325 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Punjab and Haryana High Court  upholding the conviction of the appellant for offence  punishable under Section 302 of the Indian Penal Code, 1860  (in short ’IPC’) in terms of the judgment dated 9/10.10.1997  passed by the Additional Sessions Judge, Hissar.

3.      A synoptical resume of the prosecution case is as under:

The prosecution machinery was set into motion at the  instance of Shankar - PW 5 who had four brothers. Chhajju  Ram (hereinafter referred to as the ’Deceased’) was younger to  PW 5- Shankar and they had a joint khewat in the revenue  estate of village Sirdhan. On 9.9.1993 the said Shankar and  his brother Nain Sukh and deceased Chhajju Ram went to  their fields known as Theriwala for irrigating the land. Amar  Singh (who faced trial and was acquitted) and Daya Nand  (appellant herein) were already irrigating their fields. Shankar  and others were to take turn of irrigation at 8.00 A.M. from  the accused. At 8.00 A.M. deceased Chhajju Ram diverted the  irrigation water to his field. Accused Daya Nand objected that  his turn of water had not yet started. Chhajju Ram retorted  that their turn started from 8.00 A.M. onwards. An altercation  took place between Shankar and the deceased on one side  and the accused on the other. Accused threatened that they  will see them and both of them left towards the village.  Shankar and others also went to supervise the flow of  irrigation water through the water courses. In the meantime,  both the accused came from the side of village Sirdhan.   Accused Daya Nand was armed with a gun. Accused Amar  Singh exhorted his son accused -Daya Nand to fire a shot.   Accused Daya Nand then fired a shot from his gun towards  Chhajju Ram who took a turn but was hit on the right side of  the waist and fell down. Blood started oozing out from the fire  shot injury. Nain Sukh (PW-6) also reached there at the Naka  and witnessed the occurrence apart from Shankar. Thereafter,  accused fled away towards the village along with the gun.  Chhajju Ram was admitted to Civil Hospital, Fatehabad by his  brother Shanker and Nain Sukh, where he was declared dead

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by the doctor. Ruqa Ex. PG was sent by Dr. Jagdish  Chaudhry to the Station House Officer, Police Station  Fatehabad. A wireless message Ex. PK was sent by the said  Police Station to Police Station Bhattu. Ram Kumar, Assistant  Sub inspector along with some constables reached Civil  Hospital Fatehabad and recorded the statement of Shanker in  Civil Hospital, Fatehabad. That statement Ex. PG/1 was sent  to the Police Station and on its basis, FIR was recorded by  Satbir Singh MHC, copy of which is Ex. PG/3. Inquest  proceedings were conducted and report Ex. PF/1 was  prepared by Ram Kumar Assistant Sub Inspector in the  presence of Devi Lal and Shanker Lal PWs. He moved an  application Ex. PF and post mortem examination was  conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple  wounds of small sizes were found and eleven pellets were  recovered from the abdomen of the deceased. The pellets were  sealed in a vial. The clothes of the deceased were removed and  sealed into a parcel. The cause of death was due to shock and  haemorrhage as a result of fire arm injuries which were ante  mortem in nature and sufficient to cause death in the  ordinary course of nature vide post mortem report Ex. PF/2.  Ram Kumar, Assistant Sub Inspector along with Ram Kumar  Constable then went to village Sirdhan. He inspected the spot  in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij  Lal, Chowkidar. Blood stained earth was lifted, made into a  sealed parcel and taken into possession vide recovery memo  Ex. PH. One empty cartridge of 12 bore was found lying which  was also lifted, made into a sealed parcel and taken into  possession vide memo Ex. PJ. Rough site plan, Ex. PL, was  prepared and statements of other witnesses were recorded.  Accused Daya Nand produced a double barrel gun, Ex. P-8,  licence, Ex. P-9, and two live cartridges. Sketch map, Ex. PP  of the gun was prepared. The gun was placed in a sealed  parcel. The licence and the two live cartridges were also sealed  in parcel and taken into possession vide memo Ex. PP/1. The  case property was sent for Chemical Examination and for  report of the Ballistic expert of Forensic Science Laboratory,  Haryana, Madhuban. Vide report, Ex. PO, the double barrel  gun, Ex. P8, was found in working order, the empty cartridge  hereinafter referred to as the crime cartridge, which was lifted  from the spot, Ex. P6, was opined to have been fired from the  said gun. The pellets recovered from the dead body were  opined to be pellets as are usually loaded in shot gun  cartridges, including 12 bore cartridge. As per reports, Ex.  PO/1 and Ex. P0/2, human blood was found in blood stained  earth and on shirt, Ex. P-1, Banian, Ex. P-2 and underwear  Ex. P-3 of the accused. After completion of investigation,  accused was sent up for trial.

Charge was framed against accused Daya Nand under  Section 302 IPC and 27 of the Arms Act, 1959. Charge was  framed against accused Amar Singh under Section 302 read  with Section 34 IPC.   4.      In order to establish the accusations the prosecution  examined 10 witnesses and the report of the Forensic Science  Laboratory, Haryana, Madhuban was exhibited.   5.      Accused persons during their examination under Section  313 of the Code of Criminal Procedure, 1973 (in short  ’Cr.P.C.’) pleaded innocence and false implication.  The Trial  Court relied on the evidence of eye witnesses Shankar (PW5)  and Nain Sukh (PW6).  It found the prosecution evidence  cogent and credible and recorded conviction of the appellant.  But so far as accused Amar Singh is concerned, it was held

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that the evidence was not sufficient to fasten guilt on him.

6.      In appeal, it was submitted that the evidence of Shankar  (PW5) and Nain Sukh (PW6) should not have been relied upon.   It was further submitted that a single shot that too on the hip  cannot attract application of Section 302 IPC.  Prosecution  with reference to the evidence of Shankar (PW5) and Nain  Sukh (PW6) submitted that the evidence was clear and cogent  and, therefore, the accused persons were to be convicted.  The  High Court, as noted above, dismissed the appeal.    

7.      Basic challenge in this appeal is to the conviction under  Section 302 IPC.   

8.      It was contended, as was done before the Trial Court and  the High Court, that Section 302 IPC has no application.    

9.      Learned counsel for the State, on the other hand  supported the impugned judgment.

10.     The crucial question is 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.

11.     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  \026                                         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

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   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 al l                                                                 probability cause death or                                                                 such bodily injury as is                                                                  likely to cause death, and                                                                  without any excuse for                                                                  incurring the risk of causin g                                                                 death or such injury as is                                                                 mentioned above.     

12.     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.

13.     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 to cause death" have been used. Obviously, the  distinction lies between a bodily injury likely to cause death

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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.

14.     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.

15.     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.

16.     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

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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."

17.     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."

18.     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.

19.     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 not be murder.   Illustration (c) appended to Section 300 clearly brings out this  point.

20.     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

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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.

21.     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.

22.     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 (2002 (7) SCC 175), Augustine  Saldanha v. State of Karnataka (2003 (10) SCC 472),    Thangiya v. State of T.N. (2005 (9) SCC 650) and in Rajinder v.  State of Haryana (2006 (5) SCC 425).  

23.     Considering the evidence on record in the background of  the principles of law, the inevitable conclusion is that the  appropriate conviction would be under Section 304 Part II IPC.   The conviction is accordingly altered.

24.     Undisputedly, the accused has suffered custody of nearly  8= years.  The sentence is restricted, therefore, to the period  already undergone.  The appeal is allowed to that extent.  The  accused person be set at liberty forthwith unless required in  custody in any other case.