http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  222 of 2006

PETITIONER: Kalegura Padma Rao & Anr

RESPONDENT: The State of A.P.Rep. by the Public Prosecutor

DATE OF JUDGMENT: 19/02/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5591 of 2006)  

Dr. ARIJIT PASAYAT, J.   

Leave granted.   

       Appellant along with 14 others was convicted for offences  punishable under Sections 148, 448 read with Section 149,  Section 302 read with Section 149 and Section 324 read with  Section 149 of the Indian Penal Code, 1860 (in short the ’IPC’).    The III Additional Sessions Judge, Karimnagar found all the  accused persons guilty of the charged offences. For the offence  under Section 302 read with Section 149 IPC each of the  accused persons was sentenced to undergo imprisonment for  life and to pay a fine of Rs.500/- each with default stipulation.   Similarly, for the offences relatable to Sections 148, 448, 149  and 324 IPC different sentences were imposed.  In appeal, the  High Court confirmed the conviction and sentence as imposed  by the Trial Court on the present appellants and accused nos.  7 to 9, 12 and 13.  The High Court directed acquittal of rest of  the accused persons of all charges.           

The factual position in a nutshell is as follows :                  PW-1 is the wife, PW-2 is the father, PW-3 is the mother, PW-4 is the brother and PW-5 is the sister-in-law of Pogula  Jasan (hereinafter referred to as the ’deceased’). The accused,  deceased and the material witnesses are residents of  Neerukulla village. The deceased purchased an Auto and was  plying the same between Sulthanabad and Neerukulla. On  02.07.2003 at about 9.00 P.M., the deceased returned to his  house from Sulthanabad and informed PWs.1 to 3 that when  he requested A-1 and A-2 to travel in his Auto as per the serial  number, they refused to travel in his Auto and beat him.         On 03.07.2003 morning, PW-1 and the deceased went to  the house of the Sarpanch and told him about the incident.  The Sarpanch called A-1 and enquired from him as to why he  had assaulted the deceased. A-1 admitted his guilt in the  presence of PWs. 9 and 10.  On the same day at about 6.00  P.M., A-l to A-16 came to the house of the deceased and  attacked him. A-1 beat the deceased with a stick. The  deceased ran into the house and bolted the door. In the  meantime, when PW-2 intervened to rescue the deceased, A-1  beat him with a stick. A-3 broke the doors and all the accused  entered the house and beat the deceased. Some of the accused

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

were armed with iron rods and axes. They beat the deceased  indiscriminately. Then the deceased ran out from the house.  The accused chased and beat him indiscriminately. Finally,  the deceased fell down near the Gram Panchayat office on  receipt of the injuries. Later, the deceased was taken in an  Auto to the Government Hospital, Sulthanabad. On the advice  of the Doctor, the persons who carried the deceased to the  hospital went to the Police Station and gave Ex.P-1 report. On  the basis of Ex.P-1, the police registered a crime for the  offences punishable under Sections 147, 148, 448, 307, 327  read with 149 of I.P.C.  Thereafter, the deceased and PW-2,  who received injuries, were referred to the Government  Hospital, Karimnagar. The deceased, while undergoing  treatment, succumbed to the injuries. The Inspector of Police  took up investigation, prepared the rough sketch, observed the  scene of offence, held inquest over the dead body of the  deceased, seized M.Os.1 and 2 and later sent the dead body  for postmortem examination. The accused were arrested and  weapons were recovered. After completion of the investigation,  the police laid the charge sheet.  The accused denied the  charges and claimed for trial.

       In order to further the prosecution version the  prosecution examined 22 witnesses.  On behalf of the accused  persons no oral evidence was adduced, but part of the  statement of PW-3 recorded under Section 161 of the Code of  Criminal Procedure, 1973 (in short the ’Code’) was marked as  Ext.D-1.  On consideration of the material on record the Trial  Court as noted above recorded conviction. The convicted  accused persons preferred appeals before the High Court and  by common judgment in four appeals the impugned judgment  was passed.

       In support of the appeal, learned counsel for the accused  persons submitted that the conviction is based primarily on  the evidence of witnesses who were related to the deceased.   Further the accusations even if accepted in toto do not make  out the case relatable to Section 302 IPC.   

       Learned counsel for the respondent-State on the other  hand supported the impugned judgment submitting that on  analysis of evidence on record the Courts below have come to  the right conclusion.   

In regard to the interestedness of the witnesses for  furthering the prosecution version, relationship is not a factor  to affect the credibility of a witness.  It is more often than not  that a relation would not conceal the actual culprit and make  allegations against an innocent person. Foundation has to be  laid if a 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.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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."

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.

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  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."

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

correct."

       To the same effect is the decision in State of Punjab v.  Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana  (2002 (3) SCC 76). Stress was laid by the accused-appellants  on the non-acceptance of evidence tendered by some witnesses  to contend about desirability to throw out entire prosecution  case. In essence prayer is to apply the principle of "falsus in  uno falsus in omnibus" (false in one thing, false in everything).  This plea is clearly untenable. Even if major portion of  evidence is found to be deficient, in case residue is sufficient  to prove guilt of an accused, notwithstanding acquittal of  number of other co-accused persons, his conviction can be  maintained. It is the duty of Court to separate grain from  chaff. Where chaff can be separated from grain, it would be  open to the Court to convict an accused notwithstanding the  fact that evidence has been found to be deficient to prove guilt  of other accused persons. Falsity of particular material witness  or material particular would not ruin it from the beginning to  end. The maxim "falsus in uno falsus in omnibus" has no  application in India and the witnesses cannot be branded as  liar. The maxim "falsus in uno falsus in omnibus" has not  received general acceptance nor has this maxim come to  occupy the status of rule of law. It is merely a rule of caution.  All that it amounts to, is that in such cases testimony may be  disregarded, and not that it must be disregarded. The doctrine  merely involves the question of weight of evidence which a  Court may apply in a given set of circumstances, but it is not  what may be called ’a mandatory rule of evidence’. (See Nisar  Ali v. The State of Uttar Pradesh (AIR 1957 SC 366).

       The above position was elaborately discussed in Sucha  Singh and Anr. v. State of Punjab (2003 (6) JT SC 348), and  Israr v. State of U.P. (2005 (9) SCC 616)    

In S. Sudershan Reddy v. State of A.P. (AIR 2006 SC  2716), it was observed; 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.    This brings us to the crucial question as to which was  the appropriate provision to be applied. In the scheme of IPC  culpable homicide is the 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, 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.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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        Subject to certain exceptions  culpable homicide if the act by         culpable homicide is murder if  the  the death is caused   is                act by which the death is caused  done -                          is done -        

INTENTION          (a) with the intention  of causing             (1) with the intention of causing   death;  or                              death; or

        (b) with the intention                 (2) with the intention of causing               of causing such                                 such bodily injury as the         bodily injury as is                             offender knows to be likely to          likely to cause   death; or                     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                                   (4) with the knowledge that the         knowledge that                                   act is so imminently          the act is likely to                            dangerous that it must in all          cause death.                                     probability cause death or                                                           such bodily injury as is likely                                                          to cause death, and commits                                                          such act 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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  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  probability 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  Singh 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 :  "12. 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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 nor 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 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 case  (supra) even if the intention of the 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 - 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

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,  that it may not be convenient to give a separate and clear cut  treatment to the matters involved in the second and third  stages.  The position was illuminatingly highlighted by this Court  in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382  and Abdul Waheed Khan alias Waheed and ors. v. State of A.P.  (2002 (7) SCC 175).    

        If the evidence on record is considered on the touchstone  principles set out above the inevitable conclusion is that the  proper conviction would be Section 304 Part I IPC instead of  Section 302 IPC. The conviction of the appellants is  accordingly altered from Section 302 read with Section 149 to  Section 304 Part I read with Section 149 IPC. Custodial  sentence of 10 years would meet the ends of justice. The  findings of the guilt in respect of other offences and the  sentences imposed do not warrant interference. The sentence  shall run concurrently.       

       The appeal is allowed to the aforesaid extent.