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

PETITIONER: KALARIMADATHIL UNNI

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT: 22/04/1966

BENCH:

ACT: Indian  Penal Code, ss. 300 and 34-Ingredients of  the  four clauses  of the section-Tests-Victim dying of  asphyxiation, his  mouth  and  nose having  been  plugged-Offence  whether murder  or  capable  homicide--"Injury  sufficient  in   the ordinary course of nature to cause death" in terms of cl.  3 proof  of-Common intention of accused in a case, covered  by cl  3.

HEADNOTE: The  appellants were convicted of murder under s.  302  read with s. 34 I.P.C. on the allegation that they had laid their victim in a drain after closing his mouth with adhesive tape and plugging his nose with cotton wool soaked in chloroform, as  a  result of which death was caused.  They  appealed  to this  Court  by special leave.  It was  contended  on  their behalf: (i) that their offence did not amount to murder  but only  to culpable homicide under the second part of s.  304, (ii)  that  it could not be inferred from the mere  fact  of death   that  the  injury  caused  by  the  appellants   was sufficient in the ordinary course of nature to cause  death; this had to be proved by further evidence and (iii) that the ingredients of s. 34 I.P.C. were not satisfied. HELD  :  (i) What distinguishes the offences of  murder  and culpable  homicide  is the presence of a special,  mens  rea which  consists of four mental attitudes in the presence  of any of which the lesser offence becomes the greater.   These four  mental attitudes are stated in the four clauses of  s. 300 I.P.C. [235 B] (ii)The  first clause of s. 300 says that culpable  homicide is  murder if the act by which death is caused is done  with the  intention  of causing death.  An intention  to  kill  a person  brings  the  matter so clearly  within  the  general principle  of mens rea as to cause no difficulty.  Once  the intention  to kill is proved, the offence is  murder  unless one of the exceptions applies, in which case the offence  is reduced to culpable hominid not amounting to murder.  On the facts  of the present case an intention to cause  death  was not  proved against the appellants and the clause  therefore did not apply. [235 C] (iii)The  second clause of the section deals with acts  done with  the  intention of causing such bodily  injury  as  the offender knows to be likely to cause the death of the person to  whom harm is caused.  The mental attitude here  is  two- fold.  There is first the intention to cause bodily harm and next  there is the subjective knowledge that death  will  be the  likely consequence.  English Common Law made  no  clear distinction  between intention and recklessness but  in  our law the foresight of the death must be Present.  The  mental

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

attitude  is  thus  made  of  two  elements-(a)  causing  an intentional injury and (b) which injury the offender has the foresight to know would cause death.  The Present case could not fall under this clause either. because, it could not  be said  that  the  appellants who only wanted  to  make  their victim unconscious had the Subjective knowledge of the fatal consequences of the boil harm they were causing. [235 F] 231 (iv) The appellants were however guilty of murder under  the third clause of S. 300. [237 G-H) The third clause discards the test of subjective  knowledge. It deals with acts done with the intention of causing bodily injury  to  a person and the bodily injury  intended  to  be inflicted is sufficient in the ordinary course of nature  to cause death.  In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause  death  in the ordinary way of nature the  offence  is murder  whether the offender intended causing death  or  not and  whether the offender had a subjective knowledge of  the consequences or not. [236 B] For  the  application  of  this  clause  it  must  be  first established  that  an  injury is caused,  next  it  must  be established  objectively what the nature of that  injury  in the ordinary course of nature is.  If the injury is found to be sufficient to cause death one test is satisfied.  Then it must  be proved that there was an intention to inflict  that very  injury and not some other injury and that it  was  not accidental or unintentional. [236 C-D] Virsa Singh v. State of Punjab [1958] S.C.R. 1495,  referred to. The  bodily injury caused by the appellants  was  deliberate and  preplanned  and  the subjective test  involved  in  the clause  was  therefore  satisfied.  The  other  test  namely whether the injury was sufficient in the ordinary course  of nature  to cause death was also satisfied in the case as  in the circumstances it would have been a miracle if the victim had  escaped.   Death of the victim took place as  a  direct result of the acts of his assailants. [236 E-F] (v)The  fourth clause of S. 300 comprehends  generally,  the commission  of imminently dangerous acts which must  in  all probability  cause death.  What the appellants did may  well be  said  to satisfy the requirements of this  clause  also, although it is ordinarily applicable to cases in which there is  no  intention to kill anybody in  particular.  (Obiter). [238 A] (vi)The  sufficiency  of  an injury to cause  death  in  the ordinary course of nature in the terms of el. 3 need not  in every case be required to be proved by separate evidence  in that  regard.   Where  the  victim  is  either  helpless  or rendered helpless and the offender does some act which leads to  death in the ordinary course and death takes place  from the  act  of  the offender and nothing  else  it  is  hardly necessary  to  prove more than the acts themselves  and  the causal connection between the acts and the end result.   The sufficiency   of  the  injury  in  the  present   case   was objectively  established  by the nature and quality  of  the acts taken with the consequence which was intimately related to the acts.  There was no need to establish more than  this in the case. [237 B-G] Anda  v. 9tate of Rajasthan, A.I.R. 1965 S.C.  148  referred to. (vii)All  the  acts  were done  after  deliberation  by  the appellants.   They were of a type which required  more  than one person to perpetrate.  That there was a common intention

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

admits  of  no  doubt and as clause 3 of S.  300  views  the consequence of the act objectively all those who shared  the common  intention  of causing the bodily  injury  which  was sufficient  to cause death in the ordinary course of  nature must be held responsible for the resulting offence. [238 C] 232

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 102 & 103 of 1965. Appeals by special leave from the judgments and orders dated October 12, 1964 of the Kerala High Court in Criminal Appeal No.  80  of 1964, and Criminal Appeal No.  70  and  Referred Trial No. 13 of 1964 respectively.  Jai  Gopal  Sethi, C. L. Sareen and R. L.  Kohli,  for  the appellant (in Cr.  A. No. 102/65). Harbans Singh, for the appellant (in Cr.  A. No. 103/65). A.  S. R. Chari, V. Narayana Menon and M. R. K. Pillai,  for the respondent (in both the appeals). The Judgment of the Court was delivered by Hidayatullah, J. This judgment will also govern the disposal of   Criminal  Appeal No. 102 of 1965 (Rajwant Singh v.  The State of Kerala).  The appellants in these two appeals  have been  convicted under ss. 302/34, 364, 392, 394 and  447  of the Indian Penal Code.  Unni (appellant in this appeal)  has been sentenced to death and Rajwant Singh (appellant in  the other  appeal) has been sentenced to imprisonment for  life. No  separate  sentences under the other sections  have  been imposed on Unni but Rajwant Singh has been sentenced to four years’  rigorous imprisonment under ss. 392 and 394,  Indian Penal  Code, with a direction that the sentences  shall  run concurrently  with  the sentence of imprisonment  for  life. The  High  Court of Kerala has dismissed their  appeals  and confirmed the sentence of death on Unni.  They now appeal by special leave of this Court. These  appellants were tried with three others, of whom  two were  acquitted.  One Taylor was also convicted of the  same offences and was sentenced in the aggregate to  imprisonment for  life.  He has not appealed to this Court.  We  are  not concerned  with them.  The case relates to the death of  one Lt.  Commander Menianha of the Naval Base, I.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963.  Unni was attached as a rating to this Naval Base  and at  the time of the offence was on leave,.  Taylor, who  has not appealed was an ex-sailor and Rajwant Singh was attached to  I.N.S.  Vikrant.  The case of the prosecution  was  that these  persons conspired together to burgle the safe of  the Base  Supply Office on the eve of the pay-day, when a  large sum of money was usually kept there for distribution on  the pay-day.   They collected various articles such as  a  Naval Officer’s  dress,  a bottle of chloroform,  a  hacksaw  with spare  blades, adhesive plaster, cotton wool and ropes.   On the  night in question they decoyed the Lt.  Commander  from his  house  on the pretext that he was wanted at  the  Naval Base,  and  in  a lonely place caught  hold  of  him.   They covered his mouth 233 with  the adhesive plaster and tied a handkerchief over  the plaster and plugged his nostrils with cotton wool soaked  in chloroform.   They  tied his hands and legs  with  rope  and deposited  him  in a shallow drain with his  own  shirt  put under  his  head  as a pillow.  They then  went  up  to  the sentry, who was induced to part with his rifle to one of the

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

accused who had dressed himself as an officer, and  attacked him.   The sentry would have received the same treatment  as his Lt.  Commander but he raised a hue and cry and attracted the  attention  of  the  watchman.   Fearing  detection  the assailants released the sentry and took to their heels.  The sentry  after escaping informed the Officer-on-duty  at  the Base and stated that he had recognised Rajwant Singh as  one of  his assailants.  Next morning the dead body of  the  Lt. Commander was discovered in the drain where he had been left by the assailants. Investigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who  convicted three  and sentenced them as stated above and acquitted  the other  two.   The appeals of these persons before  the  High Court  failed.   In  these appeals  the  complicity  of  the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence  of  murder  but  of causing  grievous  hurt  or  of culpable  homicide  not  amounting to murder.   It  is  also contended  that s. 34 of the Indian Penal Code could not  be used  against any of the accused.  Unni has  also  contended that  the  sentence  of death was not  proper  as  the  case against  him  was indistinguishable from that of  the  other two.  We shall deal. with these arguments. Our  attention has been drawn to the inquest and  postmortem reports  to  establish  what was actually done  to  the  Lt. Commander.   From these, it is established that the legs  of the victim were tied with rope and his arms were tied behind his back.  A large adhesive plaster was stuck over his mouth and  completely  sealed it.  A handkerchief  was  next  tied firmly  over the adhesive plaster to secure it in  position. The nostrils were plugged with cotton soaked in  chloroform. Counsel  for the appellants submit that all this shows  that the assailants did not intend to kill the Lt.  Commander but to render him unconscious.  It is admitted that the  closing of the mouth with the adhesive plaster and the  handkerchief was  complete and that it must have been impossible for  the Lt.    Commander   to  breathe  through  his   mouth.    The description,  however,  shows that the  nostrils  were  also plugged  with  cotton wool soaked in chloroform.   This  was clearly  stated  in  the  inquest report  and  also  in  the postmortem  report  and  was established  not  only  by  the witnesses proving the inquest report but also by the  doctor who performed the autopsy.  In addition the prosecution  has exhibited  and proved numerous photographs of the dead  body from various angles and these things are clearly seen in the L/S5SCI-17 (a) 234 photographs.   According  to  the doctor death  was  due  to asphyxiation. In   addition  to  the  other  evidence   establishing   the connection  of Unni and Rajwant Singh with this crime  there is a confession by Rajwant Singh before the  Sub-Magistrate, Cochin in which he graphically describes the part played  by him  and  Unni.  Rajwant Singh also stated  that  they  only wanted   the  Lt.   Commander  and  the  sentry  to   remain unconscious  while  they rifted the safe and took  away  the money.   It is contended that we must accept the  confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established.   As  this is the most important point  in  the case we shall consider it first. This  point  was  argued by Mr. J. G.  Sethi  on  behalf  of Rajwant Singh and his arguments were adopted by Mr.  Harbans Singh on behalf of Unni.  Mr. Sethi argued that the  offence

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

was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under s. 304 (second  part) of the Indian Penal Code.  It is quite  plain that the acts of the appellants resulted in the death of the victim and the offence cannot be placed lower than  culpable homicide  because the appellants must have known  that  what they  were  doing  was likely to kW.   The  short  question, therefore,  is  whether the offence was murder  or  culpable homicide. Mr. Sethi submits that of the three clauses of s. 299. which define  the  offence of culpable homicide, the  first  deals with intentional killing and the second with injuries  which are intentionally caused and are likely to cause death.   He submits that these two clauses form the basis of the offence of  murder and culpable homicide punishable under  he  first part  of  s. 304 and the third clause,  which  involves  the causing  of  death with the knowledge that by  his  act  the offender  is  likely to cause death, is  the  foundation  of offence of culpable homicide not amounting to murder punish- able  under the second part of s. 304.  He submits that  the appellants  did  not  intend causing the death  of  the  Lt. Commander but took action to keep him immobilised and silent while  they rifled the safe.  To achieve their purpose  they tied  the  victim  and  closed his  mouth  and  plugged  the nostrils  with cotton soaked in chloroform.  Each  of  these acts denoted a desire to keep the Lt.  Commander out of  the way  for  the time being but not to kill him.  Nor  can  the acts be described as done with the intention of causing such bodily injury as was likely to kill.  At the most, says  he, it can be said that the death was caused with the  knowledge on  the part of the appellants that by their acts they  were likely  to cause death and that brings the matter within  s. 304 II, I.P.C. 235 The  argument requires close examination.  Two offences  in- volve  the  killing of a person.  They are  the  offence  of culpable  homicide and the more henious offence  of  murder. What  distinguishes these two offences is the presence of  a special mens rea which consists of four mental attitudes  in the  presence  of any of which the  lesser  offence  becomes greater.  These four mental attitudes are stated in s.  300, I.P.C.  as  distinguishing  murder  from  culpable  homicide Unless the offence can be said to involve at least one  such mental attitude it cannot be murder.  We shall consider  the acts of the appellants in relation to each of the clauses of s. 300. The  first clause says that culpable homicide is  murder  if the act by which death is caused is done with the  intention of causing death.  An intention to kill a person brings  the matter  so clearly within the general principle of mens  rea as  to cause no difficulty.  Once the intention to  kill  is proved,  the offence is murder unless one of the  exceptions applies  in  which case the offence is reduced  to  culpable homicide  not amounting to murder.  As there is no  question of any of the exceptions they need not be mentioned.  But it is plain that the appellants did not contemplate killing the Lt.  Commander.   No  part of their  preparations  shows  an intention to kill.  Had they so desired, they had ample time and opportunity to effectuate that purpose without going  to the  trouble of using cotton soaked in chloroform  to  stuff the  nostrils.  They had only to hold his nose closed for  a few minutes.  The confession to which we have referred  also shows that the news of the death of the Lt.  Commander  came to   them  with  as  much  surprise  as  shock.   In   these circumstances, the first clause of s. 300 cannot apply.

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

The second clause deals with acts done with the intention of causing  such  bodily  injury as the offender  knows  to  be likely  to  cause the death of the person to  whom  harm  is caused.   The  mental attitude here is two-fold.   There  is first  the intention to cause bodily harm and next there  is the  subjective  knowledge  that death will  be  the  likely consequence of the intended injury.  English Common Law made no clear distinction between intention and recklessness  but in our law the foresight of the death must be present.   The mental attitude is thus made of two elements-(a) causing  an intentional injury and (b) which injury the offender has the foresight  to  know would cause death.  Here the  injury  or harm  was  intended.  The appellants intended tying  up  the victim,  closing his mouth by sticking adhesive plaster  and plugging  his  nose with cotton wool soaked  in  chloroform. They  intended  that the Lt.  Commander should  be  rendered unconscious for some time but they did not intend to do more harm than this.  Can it be said that they had the subjective knowledge of the fatal consequences of the bodily harm  they were causing?  We think that on the facts the answer  cannot be  in the affirmative.  To say that the act  satisfied  the test of subjective knowledge would be really 236 tantamount to saying that the appellants intended to  commit the murder of the Lt.  Commander which, as said already, was not the case. The third clause discards the test of subjective  knowledge. It deals with acts done with the intention of causing bodily injury  to  a person and the bodily injury  intended  to  be inflicted is sufficient in the ordinary course of nature  to cause death.  In this clause the result of the intentionally caused  injury  must be viewed objectively.  If  the  injury that  the  offender  intends  causing  and  does  cause   is sufficient to cause death in the ordinary way of nature  the offence  is  murder whether the  offender  intended  causing death  or  not  and whether the offender  had  a  subjective knowledge  of the consequences or not.  As was laid down  in Virsa Singh v. The State of Punjab(1) for the application of this  clause it must be first established that an injury  is caused,  next  it must be established objectively  what  the nature  of that injury in the ordinary course of nature  is. If  the injury is found to be sufficient to cause death  one test is satisfied.  Then it must be proved that there was an intention  to  inflict that very injury and not  some  other injury and that it was not accidental or unintentional.   If this is also held against the offender the offence of murder is established. Applying  these tests to the acts of the appellants we  have to  see first what bodily injury has been established.   The bodily  injury consisted of tying up the hands and  feet  of the  victim,  closing the mouth with  adhesive  plaster  and plugging the nostrils with cotton soaked in chloroform.  All these  acts were deliberate acts which had  been  preplanned and they, therefore, satisfy the subjective test involved in the  clause.   The  next  question  is  whether  these  acts considered  objectively  were  sufficient  in  the  ordinary course of nature to cause death.  In our judgment they were. The victim could only possibly breathe through the  nostrils but  they were also closed with cotton wool and in  addition an asphyxiating agent was infused in the cotton.  All in all it  would  have been a miracle if the  victim  had  escaped. Death  of  the victim took place as a direct result  of  the acts of his assailants. Mr.  Sethi suggested that the victim must have struggled  to free  himself  and had rolled into the drain and  this  must

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

have  pushed up the cotton further into the nostrils.   This is  not correct.  The victim was placed in the drain by  his assailants  because  his folded shirt was placed  under  his head  and had obviously fainted by that time.  No one  seems to  have  been aware of his  presence;  otherwise  discovery would  have  taken place earlier.  This leads  to  the  only conclusion that there was no change in the circumstances  in which  the  victim was left by the assailants.   The  bodily injury  proved fatal in the ordinary course of nature.   The ordinary course (1)[1968] S.C.R. 1495. 237 of nature was neither interrupted nor interfered with by any intervening  act  of another and whatever happened  was  the result of the acts of the assailants, and their acts alone. Mr. Sethi argues that the sufficiency of the injury to cause death  in the ordinary course of nature is  something  which must  be  proved and cannot be inferred from the  fact  that death has in fact taken place.  This is true of some  cases. If  a blow is given by reason of which death ensues, it  may be necessary to prove whether it was necessarily fatal or in the  language of the Code sufficient in the ordinary  course of nature to cause death.  In such a case it may not be open to argue backwards from the death to the blow, to hold  that the  sufficiency is established because- death  did  result. As death can take place from other causes the sufficiency is required to be proved by other and separate evidence.  There are,  however, cases and cases.  Where the victim is  either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death  takes place  from the act of the offender and nothing else, it  is hardly necessary to prove more than the acts themselves  and the  causal connection between the acts and the end  result. Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved.  Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the  manner of  plugging should have been established before  a  finding can  be given that the bodily injury was sufficient  in  the ordinary  course of nature to cause death.  This  would,  of course,  have been necessary if it could at all  be  thought that  not  the  acts  of  the  assailants  but  some   other intervening circumstance might have led to the death of  the victim.   But there was none.  There was no interference  by anyone  else.  Death was due to asphyxiation whether  caused by  the  mechanical  obstruction  of  the  nostrils  or   by chloroform as an asphyxiating agent, or both.  Whichever way one  looks at it, the injury which caused the death was  the one  inflicted  by the assailants.  The sufficiency  of  the injury was objectively established by the nature and quality of the acts taken with the consequence which was  intimately related  to the acts.  There was no need to  establish  more than this in the case.  As was pointed out in Anda v.  State of  Rajasthan(1) "the emphasis in clause thirdly is  on  the sufficiency  of the injury in the ordinary course of  nature to cause death.  The sufficiency is the high probability  of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is  intended, the  offence  is  murder".  In this case  the  acts  of  the appellants were covered by the third clause in s. 300. As  we  are  satisfied that this case  falls  within  clause thirdly we need hardly consider whether it falls also within the   fourth  clause  or  not.   That  clause   comprehends, generally, the commission of (1) A.I. R. 1965 S.C. 148 at 151.

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

238 imminently  dangerous  acts which must  in  all  probability cause  death.  To tie a man so that he cannot help  himself, to  close  his mouth completely and plug his  nostrils  with cotton  wool  soaked  in chloroform  is  an  act  imminently dangerous  to life, and it may well be said to  satisfy  the requirements  of the last clause also, although that  clause is  ordinarily  applicable  to cases in which  there  is  no intention  to  kill  any one in particular.   We  need  not, however,  discuss  the point in this case.   We  accordingly hold that the offence was murder. All the acts were done after deliberation by the appellants. They  were of a type which required more than one person  to perpetrate.   What was done had already been  discussed  and the  execution of the plan was carried out as  contemplated. That there was a common intention admits of no doubt and as clause  3  of  s.  300 views  the  consequence  of  the  act objectively  all  those who shared the common  intention  of causing  the  bodily injury which was  sufficient  to  cause death  in  the  ordinary  course  of  nature  must  be  held responsible   for  the  resulting  offence.   Even  if   the consequence  was different from what was actually  intended, those who abetted (and the appellants were either  offenders principally or abetters) would be equally responsible  under s. 113 of the Indian Penal Code provided they knew that  the act  which  they  were abetting was  likely  to  cause  that effect.   On the argument of the appellants that s.  304  11 applies,  it  is obvious that the above  provision  must  be attracted.   In  our judgment the  appellants  were  rightly adjudged guilty under s. 302/34, Indian Penal Code. As  regards the sentence of death passed on Unni, we see  no reason  to  interfere.  He was the master  mind  behind  the whole  affair  and  the sentence of  death  was,  therefore, appropriate.   We see no force in either appeal.  They  will be dismissed. Appeals dismissed. 239