REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  754    OF 2008 (Arising out of SLP (Crl.) No.1241 of 2007)

Kesar Singh & Anr. … Appellants

Versus

State of Haryana … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

Fact

2. Hardev Singh was a resident of Derabassi.  He was a teacher.  He,

along with Karam Chand, came to village Budhanpur to meet his father on

24.4.1988.  There was a vacant land in front of their house which was in

possession of  Pala  Ram and others.   It  was a Shamlat  land.   They were

digging foundation.  Ujjagar Singh, father of Hardev Singh, asked them to

leave some passage for their house whereupon Pala Ram exhorted that the

old  man  should  be  taught  a  lesson.   Ujjagar  Singh  shouted  for  help.

Appellant and Karam Chand, on hearing his shouts came out.  They saw

Kesar Singh giving a Kassi (Spade) blow from the reverse side on the head

of Hardev Singh’s father.  He fell down.  He was taken to primary health

centre.  He was referred to the General Hospital.  However, on 30.4.1988,

his condition having deteriorated, he was referred to Medical Sciences and

Research,  Chandigarh  for  treatment.   He  succumbed  to  his  injuries  on

1.5.1988.

Proceedings

3. Appellants were charged for commission of an offence under Section

302/34 of the Indian Penal Code.  The learned Sessions Judge accepted the

prosecution case.  He, however, opined that no case under Section 302 of

the Indian Penal Code was made out, stating :

“I, however, find force in the contention of learned defence counsel that the case in hand does not fall within ambit  of  Section 302 of  the Indian Penal Code.  It is admitted case of the prosecution that the  occurrence  was  not  the  result  of  pre- meditation.   The accused were filling foundation on the shamlat-street which was objected to by the deceased.  There was a sudden fight and heat of

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passion accused Kesar Singh gave kassi blow on the head  of  Ujjagar  Singh  on the  exhortation  of Pala Ram accused.  It was a single blow and that too from the blunt side of the Kassi.  The crime committed by the accused is culpable homicide not amounting to murder as envisaged by Section 300 (Exception-4) IPC, punishable under Section 304-I of the Indian Penal Code.”

4. On an appeal  having  been preferred  thereagainst,  a  learned  Single

Judge of the High Court, while relying on the decision of this Court in Virsa

Singh v.  State of Punjab [AIR 1958 SC 465] as also in  Shankar Narayan

Bhadolkar v. State of Maharashtra [(2005) (9) SCC 71], opined :

“Applying  the  principles  of  law,  as  noticed hereinafter,  I  am of  the  considered  opinion,  that the offence committed by the appellants does not fall  within  the  definition  of  Section  300  of  the IPC,  nor  does  it  fall  within  the  definition  of offence,  punishable  under  Section  304II  of  the Indian Penal Code.  In my considered opinion, the learned trial  Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where  culpable  homicide  does  not  amount  to murder, i.e. does not fall  within the definition of murder,  as  contained in  Section 300 of  the IPC. Section 304 is  sub-divided into two parts.   If an injury  is  inflicted  with  the  knowledge  and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition

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of Section 304-II.  Thus, is intention.  If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but  where  no  such  intention  is  established  and only knowledge that  the injury is likely to cause death, it would fall under Part-II.”

It was, however, observed :

“However, the nature of the injury, the weapon of offence,  the  intention  and  knowledge  of  the assailants,  in  my  considered  opinion,  clearly places the offence as one under Section 304-I of the IPC.  Appellant No.1 inflicted the injury with knowledge  and  intention  that  the  injury,  if inflicted  is  likely  to  cause  death,  but  with  no intention  to  cause death.   However,  as  from the facts  and circumstances  of  the present  case,  and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC.”

Contentions

5. Mr.  Dinesh  Verma,  learned  counsel  appearing  on  behalf  of  the

appellant, would submit that the very fact that the fight was a sudden one

and single blow has been inflicted with the reverse side of a Kassi, the case

would fall under Section 304 Part-II of the Indian Penal Code (for short,

‘the Code’) and not Part-I thereof.

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6. Mr. Rajeev Gaur ‘Naseem’, learned counsel appearing on behalf of

the respondent, on the other hand, would contend that even in a situation of

this nature, Part-I of Section 304 would apply.   

The Statute

7. Chapter  XVI of  the Code deals  with  offences  affecting the  human

body.  Section 299 defines ‘culpable homicide’.  Section 300, on the other

hand,  defines  ‘murder’.   Several  exceptions  are  curved  out  therefrom.

Exceptions  specified  therein  are  also  subject  to  certain  exceptions  as

contained  in  the  provisos  appended  thereto;  one  of  them  is  when  the

offender commits the murder whilst deprived of the power of self-control by

grave  and  sudden  provocation  causing  the  death  of  the  deceased.   The

second exception deals with exceeding the power in exercise in good faith

or the right of private defence of the person or property on the part of the

accused.   

Exception  3  applies  to  a  public  servant  of  aiding  another  public

servant with which we are not concerned.   

Exception 4 reads as under :

“Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel

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and  without  the  offender  having  taken  undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers  the provocation or  commits  the first assault.”

We may now notice  Section  304  of  the  Code.   When  an  offence

comes  within  the  four  corners  of  Section  299  of  the  Code,  culpable

homicide would not amount to murder.   

Section  300,  however,  although  defines  what  would  amount  to

culpable homicide amounting to murder, as indicated hereinbefore, contains

several exceptions.   

Distinction

8. The distinction between the first part and the second part of Section

304 of the Indian Penal Code, therefore, must be considered having regard

to the provisions  contained in Sections  299 and 300 of  the Indian Penal

Code.  Clause (a) of Section 299 corresponds to clause (1) of Section 300,

clause (b) of Section 299 corresponds with clauses (2) and (3) of Section

300 and clause (c) of Section 299 corresponds with clause (4) of Section

300 of the Code.   

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This can best be understood if Sections 299 and 300 of the Code are

noticed side by side :

“A  person  commits  culpable homicide,  if  the  act  by  which  the death is caused is done

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

(a) With  the  intention  of  causing death

(1) With  the  intention  of  causing death

(b) With  the  intention  of  causing such bodily injury as is likely to cause death

(2) With  the  intention  of  causing such  bodily  injury  as  the offender  knows  to  be  likely  to cause the death of the person to whom the harm is caused.

(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  of cause death.

(c) With the knowledge that…. The act is likely to cause death

(4) With the knowledge that the act is  so  immediately  dangerous that  it  must  in  all  probability cause  death,  or  such  bodily injury as is likely to cause death, and  there  is  no  excuse  for incurring the risk.

9. The distinguishing feature is the mens rea. What is pre-requisite in

terms  of  clause  (2)  of  Section  300  is  the  knowledge  possessed  by  the

offender in regard to the particular victim being in such a peculiar condition

or state of health that the intentional harm caused to him is likely to be fatal.

Intention to cause death is not an essential ingredient of clause (2).  When

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there is an intention of causing a bodily injury coupled with knowledge of

the offender as regards likelihood of such injury being sufficient to cause

the death  of  a particular  victim would  be sufficient  to  bring  the offence

within the ambit of this clause.  

10. For determination of the said question, it would be convenient if the

exceptions contained in Section 300 are taken into consideration as if the

case falls  under  the  said exceptions,  there would  not  be any question of

applicability of the main provision of Section 300 of the Indian Penal Code.

11. The distinction between culpable homicide amounting to murder and

not  amounting  to  murder  is  well  known.   Culpable  homicide  is  genus,

murder  is  its  specie.   The  culpable  homicide,  excluding  the  special

characteristics  of  murder,  would  amount  to  culpable  homicide  not

amounting  to  murder.   The  Code  recognizes  three  degrees  of  culpable

homicide.  When a culpable homicide is of the first degree, it comes within

the purview of the definition of Section 300 and it will amount to murder.

The second degree which becomes punishable in the first  part  of Section

304  is  culpable  homicide  of  the  second  degree.   Then  there  is  culpable

homicide of third degree which is the least side of culpable homicide and

the punishment provided for is also the lowest among the punishments for

the three grades.  It is punishable under the second part of Section 304.   

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12. The questions which are required to be posed are –  

(1) Whether the bodily injuries found on the deceased were intentionally

inflicted by the accused; and if so,  

(2) Whether they were sufficient to cause death in the ordinary course of

nature.   

If  both  these  elements  are  satisfied,  the  same  would  amount  to

murder.  However, when the court is beset with a question as to whether the

offence is murder or culpable homicide not amounting to murder, the fact

involved must be examined having regard to : (1) whether the accused has

done an act which caused the death of another; (2) if a causal connection is

found between the act of the deceased and the death, the relevant question

would be whether the act of the accused amounts to culpable homicide as

defined in Section 299; and (3) if the answer thereto again is found to be in

affirmative, the question would be whether in the facts of this case, Section

300 or any of the exceptions contained therein would be attracted.  In this

case, it has been found by both the courts that the offence committed by the

accused does not amount to culpable homicide amounting to murder.  The

difficulty, thus, arises herein in applying thirdly of Section 300, vis-à-vis

exception 4 thereto.

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Precedents

13. We must begin with the decision of King v. Aung Nyun [191 IC 306

(FB)] where  it  was  observed  “it  does  not  follow that  a  case  of  culpable

homicide is murder because it does not fall within any of the exceptions of

Section 300.  To render culpable homicide as murder, the case must come

within the provisions  of  clause  (1)  or  (2)  or  (3)  or  (4)  of  Section 300.”

Whereas Section 299 defines the offence of culpable homicide, Section 300

defines the circumstances in which the offence of culpable homicide will, in

absence of exceptions laid down therein, amount to murder.

14. Culpable  homicide  may  be  classified  in  three  categories  –  (1)  in

which death is caused by the doing of an act with the intention of causing

death;  (2)  when  it  is  committed  by  causing  death  with  the  intention  of

causing such bodily injury as is  likely to cause death;  and (3) where the

death is caused by an act done with the knowledge that such act is likely to

cause death.   

A note of caution at this  juncture must be stated.   Knowledge and

intention  should  not  be  confused.   Section  299  in  defining  first  two

categories does not deal with the knowledge whereas it does in relation to

the third category.  It would also be relevant to bear in mind the import of

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the terms “likely by such act to cause death”.  Herein again lies a distinction

as ‘likely’ would mean probably and not possibly.  When an intended injury

is likely to cause death, the same would mean an injury which is sufficient

in the ordinary course of nature to cause death which in turn would mean

that death will be the most probable result.

A. Virsa Singh Standard

15. The locus classicus operating in the field is Virsa Singh (supra).  We

may notice the judgment at some details :

Facts : In  Virsa  Singh,  the  appellant  therein  was  sentenced  to

imprisonment for life under Section 302 I.P.C. There was only one injury on

the deceased and that was attributed to him. It was caused as a result of the

spear  thrust  and  the  Doctor  opined  that  the  injury  was  sufficient  in  the

ordinary course of nature to cause death.  The Courts also found that  the

whole affair was sudden and occurred on a chance meeting. Peritonitis also

supervened which hastened the death of the deceased. It was contended that

the prosecution has not proved that there was an intention to inflict a bodily

injury that was sufficient to cause death in the ordinary course of nature and

therefore the offence was not one of murder. This contention was rejected.

We may notice the findings under different heads :

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1.      What must the prosecution prove?   

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.

2. The Standard Laid Down

It was said that the intention that the section requires must be related,

not only to the bodily injury inflicted, but also to the clause, “and the bodily

injury intended to be inflicted is sufficient in the ordinary course of nature

to cause death.”  

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This  is  a  favourite  argument  in  this  kind  of  case  but  may not  be

entirely correct. If there is an intention to inflict an injury that is sufficient to

cause death in the ordinary course of nature, then the intention is to kill and

in that event, the "thirdly" would be unnecessary because the act would fall

under the first part of the section, namely -  

"If the act by which the death is caused is  done with the intention of causing death."  

In our opinion, the two clauses are disjunctive and separate. The first

is subjective to the offender:  

"If it is done with the intention of causing bodily injury to any person."  

It must, of course, first be found that bodily injury was caused and the

nature of the injury must be established, that is to say, whether the injury is

on the leg or the arm or the stomach, how deep it penetrated, whether any

vital organs were cut and so forth. These are purely objective facts and leave

no room for inference or deduction : to that extent the enquiry is objective;

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but  when it  comes  to  the  question  of  intention,  that  is  subjective  to  the

offender and it must be proved that he had an intention to cause the bodily

injury that is found to be present.  

Once that is found, the enquiry shifts to the next clause -  

"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."  

The first part of this is descriptive of the earlier part of the section,

namely, the infliction of bodily injury with the intention to inflict it, that is

to say, if the circumstances justify an inference that a man's intention was

only to inflict a blow on the lower part of the leg, or some lesser blow, and

it can be shown that the blow landed in the region of the heart by accident,

then, though an injury to the heart is shown to be present, the intention to

inflict an injury in that region, or of that nature, is not proved. In that case,

the first part of the clause does not come into play. But once it is proved that

there was an intention to inflict the injury that is found to be present, then

the earlier part of the clause we are now examining - “and the bodily injury

intended to be inflicted” is merely descriptive.  

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All it means is that it is not enough to prove that the injury found to

be present is sufficient to cause death in the ordinary course of nature; it

must in addition be shown that the injury is of the kind that falls within the

earlier clause, namely, that the injury found to be present was the injury that

was intended to be inflicted. Whether it was sufficient to cause death in the

ordinary course of nature is a matter of inference or deduction from the

proved facts about the nature of the injury and has nothing to be with the

question of intention.  

In considering whether the intention was to inflict the injury found to

have been inflicted, the enquiry necessarily proceeds on broad lines as, for

example, whether there was an intention to strike at a vital or a dangerous

part  of  the  body, and whether with  sufficient  force to  cause  the  kind  of

injury found to have been inflicted. It is, of course, not necessary to inquire

into every last detail as, for instance, whether the accused intended to have

the bowels  fall  out,  or  whether  he intended to  penetrate  the  liver  or  the

kidneys or the heart. Otherwise, a man who has no knowledge of anatomy

could never be convicted, for, if he does not know that there is a heart or a

kidney or bowels,  he cannot be said to have intended to injure them. Of

course, that  is  not  the kind of  enquiry. It  is  broad based and simple and

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based on commonsense : the kind of enquiry that “an ordinary man” could

readily appreciate and understand.  

To  put  it  shortly,  the  prosecution  must  prove  the  following  facts

before it can bring a case under Section 300, "3rdly":  

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

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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.  

Once  these  four  elements  are  established  by the  prosecution  (and,

indisputably,  the burden is  on the prosecution throughout)  the offence is

murder  under  Section  300,  “3rdly”.  It  does  not  matter  that  there  was  no

intention to cause death. It does not matter that there was no intention even

to cause an injury of a kind that is sufficient to cause death in the ordinary

course of nature (not that there is any real distinction between the two). It

does not even matter that there is no knowledge that an act of that kind will

be likely to cause death. Once the intention to cause the bodily injury is

actually found to be proved, the rest of the enquiry is purely objective and

the only question is whether, as a matter of purely objective inference, the

injury is sufficient in the ordinary course of nature to cause death. No one

has a licence to run around inflicting injuries  that  are sufficient  to cause

death in the ordinary course of nature and claim that they are not guilty of

murder. If they inflict injuries of that kind, they must face the consequences;

and they can only escape if it can be shown, or reasonably deduced that the

injury was accidental or otherwise unintentional.”

B.      The Different Views    

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Hence, the question of whether the injury is sufficient in the ordinary

course of nature to cause death is an objective enquiry.  The accused need

not have knowledge as whether the injury he intended to cause would have

been sufficient in the ordinary course of nature to cause death.  This is the

position the Court took in the Virsa Singh   case  .

Unfortunately, the proportions in  Virsa Singh have not been rigidly

followed  subsequently.  For  example,  in  State  of Andhra  Pradesh v.

Rayavarapu Punnayya and Anr, [(1976) 4 SCC 382],  the enquiry became

one of whether the accused intended to cause the ultimate internal injury

that  led  to  death  i.e.  the  Court  inferred,  from the  surrounding  facts  and

circumstances  in  that  case  that  the  accused  had  intended  to  cause  the

hemorrhage etc that ultimately led to death.  

This  position  is  somewhat  contrary  to  Vivien  Bose,  J’s

pronouncements in Virsa Singh.  

The following  Para in Virsa Singh is illustrative :

“…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

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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, it 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.  But  whether  the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if  serious,  how serious,  is  a  totally  separate and distinct  question and has nothing to do with the  question  whether  the  prisoner  intended  to inflict the injury in question.”

Another passage which is relevant for our purpose reads, thus:

“…It is  true  that  in  a  given case the enquiry may  be  linked  up  with  the  seriousness  of  the injury. For example, if it can be proved, or if the, totality of the circumstances justify an inference, that  the  prisoner  only  intended  a  superficial scratch and that  by accident  his  victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury.

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The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all  reasonable inferences of fact in the absence of direct testimony. It is  not one for guess-work and fanciful conjecture.”

The Jayaprakash Case brings the law back to the Virsa Singh position.

I. PRESUMPTION AS REGARDS INTENTION

Let  us  place  on  record  the  different  approaches  in  the  two

decisions.  In Virsa Singh:

“In the absence of  evidence,  or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his  act  was  a  regrettable  accident  and  that  he intended  otherwise,  it  would  be  perverse  to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case and in any case it is a question of fact), the rest is a matter  for  objective  determination  from  the medical  and other evidence about the nature and seriousness of the injury.”

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In Jayaprakash:

“In  Clause  Thirdly  the  words  "intended  to  be inflicted"  are  significant.  As noted  already,  when  a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient  in the ordinary course of nature to  cause death it  does not  necessarily follow that the offender intended to cause the injury of that nature.  However,  the  presumption  arises  that  he intended to cause that particular injury.”

II. EVIDENCE TO BE CONSIDERED

In Jayaprakash:

“In  such  a  situation  the  Court  has  to  ascertain whether the facts and circumstances in the case are such as  to  rebut  the  presumption  and such facts and  circumstances  cannot  be  laid  down  in  an abstract rule and they will (sic) vary from case to case.  However,  as  pointed  (sic)  in  Virsa  Singh's case 1958 SCR 1495 the weapon used, (sic)ree of force released in wielding it, (sic)edent relations of the parties, the (sic)which the attack was made that is  to  say  sudden  or  premeditated,  whether  the injury was inflicted during a struggle or grappling, the  number  of  injuries  inflicted  and  their  nature and  the  part  of  the  body  where  the  injury  was inflicted  are  some of  the  relevant  factors.  These and other factors which may arise in a case have to be  considered  and  if  on  a  totality  of  these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused…

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…The  'intention'  and  'knowledge'  of  the accused are subjective and invisible states of mind and  their  existence  has  to  be  gathered  from the circumstances,  such  as  the,  weapon  used,  the ferocity of attack,  multiplicity of injuries and all other surrounding circumstances.”

16. Shifting the inquiry to the next clause ‘and the bodily injury intended

to be inflicted is sufficient in the ordinary course of nature to cause death’, it

was held :

“In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily  proceeds  on  broad  lines  as,  for example, whether there was an intention to strike at a vital  or a dangerous spot,  and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to  enquire  into  every last  detail  as,  for  instance, whether the prisoner intended to have the bowels fall  out,  or  whether  he intended to  penetrate  the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convict,  for,  if  he  does  not  know that  there  is  a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense;  the kind of enquiry that  'twelve  good  men  and  true'  could  readily appreciate and understand.”

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17. In determining the question even the manner in which the injury was

inflicted and his knowledge as to whether it  would be a severe one or a

serious  one would  also  be a  relevant  factor.   (See  also  State  of  Andhra

Pradesh v. Rayavarapu Punnayya & Anr. [(1976) 4 SCC 382].

18. In a case where the death occurred after nine days, this Court opined

that the prosecution failed to objectively prove the injury sufficient to cause

death in the ordinary course of nature. [See  Jayraj v.  State of Tamil Nadu

[(1976) 2 SCC 788].

19. For  the  said  purpose,  the  circumstances  surrounding  the  incident

would also be relevant.   In  Patel Rasiklal  Becharbhai  & Ors. v.  State of

Gujarat [1993 Supp.(1) SCC 217] and  Gurdeep Singh v.  Jaswant Singh &

Ors. [1992 Supp.(3) SCC 103], in a situation of this nature, this Court held

Part-II of Section 304 to be applicable.  

Knowledge v. Intention

20. We  must  keep  in  mind  the  distinction  between  knowledge  and

intention.  Knowledge in the context of Section 299 would, inter alia, mean

consciousness or realization or understanding.  The distinction between the

terms  ‘knowledge’  and ‘intention’  again  is  a  difference  of  degrees.   An

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inference of knowledge that it  is likely to cause death must be arrived at

keeping in view the fact situation obtaining in each case.  The accused must

be aware of the consequences of his act.

21. Knowledge denotes  a bare  state  of  conscious  awareness  of  certain

facts  in  which  the  human  mind  might  itself  remain  supine  or  inactive

whereas intention connotes a conscious state in which mental faculties are

roused into activity and summed up into action for the deliberate purpose of

being directed towards a particular and specific end which the human mind

conceives and perceives before itself.  

This  was  discussed  extensively  in  Jai  Prakash   v.    State  (Delhi   

Administration)  [(1991) 2 SCC 32], stating :

“…We  may  note  at  this  state  that  'intention'  is different  from  'motive'  or  'ignorance'  or 'negligence'.  It  is  the  'knowledge'  or  'intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable  homicide  or  murder.  Therefore,  it  is necessary  to  know  the  meaning  of  these expressions as used in these provisions...

…The 'intention'  and 'knowledge'  of the  accused are  subjective  and  invisible  states  of  mind  and their  existence  has  to  be  gathered  from  the circumstances,  such  as  the,  weapon  used,  the ferocity of attack,  multiplicity of injuries and all other  surrounding  circumstances.  The framers  of

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the code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been  aware  that  certain  specified  harmful consequences  would  or  could  follow.  But  that knowledge  is  bare  awareness  and  not  the  same thing as intention that such consequences should ensue.  As  compared  to  'knowledge',  'intention' requires  something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.”

Kenny in "Outlines of Criminal Law" (17th Edition at page 31) has

observed:

Intention: To intend is to have in mind a fixed purpose to reach  a  desired  objective;  the  noun  'intention'  in  the present connection is used to denote the state of mind of a man who not only foresees but also desires the possible consequences  of  his  conduct.  Thus  if  one man throws another from a high tower or cuts off his head it would seem plain that he both foresees the victim's death and also desires it:  the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless there is  also foresight,  since a man must  decide  to  his  own  satisfaction,  and  accordingly must  foresee,  that  to  which  his  express  purpose  is directed.

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Again, a man cannot intend to do a thing unless he desires to do it. It

may well  be a thing that  he dislikes doing,  but  he dislikes still  more the

consequences of his not doing it. That is to say he desires the lesser of two

evils, and therefore has made up his mind to bring about that one.

Russell on Crime (12th Edition at Page 41) has observed:

“In the present analysis of the mental element in crime the  word  'intention'  is  used  to  denote  the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes  his  line  of  conduct  so  as  to  achieve  a particular end at which he aims.”

It can thus be seen that the 'knowledge' as contrasted with 'intention'

signifies  a  state  of  mental  realisation  with  the  bare  state  of  conscious

awareness of certain facts in which human mind remains supine or inactive.

On the other hand, 'intention' is a conscious state in which mental faculties

are  aroused  into  activity  and  summoned  into  action  for  the  purpose  of

achieving a conceived end. It means shaping of one's conduct so as to bring

about a certain event. Therefore in the case of 'intention' mental faculties are

projected  in  a  set  direction.  Intention  need  not  necessarily  involve

premeditation.  Whether there is  such an intention or not  is a question of

fact.

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Law Applicable in this case

22. Keeping in view the aforementioned legal principles in mind, we may

notice the facts of the present case.   

In the instant case, the reverse side of a kassi was used by the accused

to hit  the deceased on his  head, a  vital   part  of  the body  .  The   force   with

which  these  injuries  were  inflicted  cannot  be  disputed  either  given  the

internal injuries these led to death as would appear from the injury report as

also post mortem report which read as under :

“1. Lacerated  wound  3cm  x  ½  cm  x  1  cm present  on  the  left  frontal  region  of  the skull.   Margin  of  the  injury  was  irregular and  injury  was  about  3  inches  above  the medical  end of  left  eye brow.  This  injury was present over a contusion about 2 inches x 2 inches reddish blue in condition.  Patient was referred to General Hospital, Sector 16, Chandigarh for X-ray skull and observation.

2. Contusion  2”  x  1”  present  over  the  upper right eye bluish in colouration.

3. Complaints  of  pain  over  right  shoulder. Tenderness positive

XXX XXX XXX

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1) Black eye right with contusion all around.

2) Stitched wound scalp right side 1 inch in size.

3) Fracture of the frontal bone right side.  With extra dural and subdural hemorrhage.  But hole on the right temper of parietal area.  Stomach was empty.  Rest of the organs were normal.  In my opinion cause of death was shock and  hemorrhage  due  to  head  injury.   Injury  was  anti mortem in nature and was sufficient to cause death in the ordinary course of nature.”

Further,  the  exhortation  by  the  accused,  just  before  he  struck  the

deceased, that he needed to teach the deceased a lesson, also shows that he

intended to hit him on the head.  

Hence, looking at all these facts and circumstances, intention to cause

the bodily injury in question is proved.  

Further, due to the  inapplicability of Explanation 4, there is nothing

on facts to rebut this presumption of intention.

Hence, the first part of S.300 “Thirdly” is proved.

The land belongs to the accused.  The title is not in dispute. They had

a right over the land.  They could excavate the same.  The quarrel started

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because the deceased wanted them to leave some passage.  Both the courts

have held that it  was a sudden fight which does not appear to be wholly

correct.   

The word “fight” is  used  to  convey something more than a verbal

quarrel. It postulates a bilateral transaction in which blows are exchanged.

In order to constitute a fight, it is necessary that blows should be exchanged

even if they all do not find their target. [Ratanlal and Dhirajlal, Vol 2, page

1364, Footnote 4]  No material in this regard has been brought on record.

In Para 14 of the Learned Sessions Judge’s judgment, it is explicitly

stated that the contention of the accused (that the deceased had an

altercation with the accused’s labourers) was baseless.  The High Court says

that the accused have not produced any evidence in support of their

contention that there was an altercation between the two groups.

Further,  the  contention  of  the  prosecution  (that  when the deceased

merely asked the accused to leave free some passageway, and the  accused

exhorted that the deceased must be taught a lesson and proceeded to hit him

on the head with the reverse-side of the kassi)  has been accepted by the

courts  below.   There  was,  thus,  no  fight  far  less  any  sudden  fight.

Provocation per se is not fight.  Asking somebody to do something again

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may not be a provocation.  Expressing a desire that some passage may be

left may not be considered to be a demand.    

Hence, in this case, there is nothing on facts to show that a “sudden

fight” and “heat of passion”, as envisaged under Exception 4 to S.300, had

developed.

In Tholan v.  State of Tamil Nadu [(1984) 2 SCC 133], the accused,

who dealt a single knife blow on the chest found to be sufficient to cause

death, was convicted under Section 304 Part II I.P.C., the Court disagreeing

with the contention on behalf  of the State that  Clause III of Section 300

I.P.C would be attracted in such a case. In arriving at such a conclusion, this

Court took into consideration various surrounding circumstances, including

the fact that the accused dealt only one blow.  

The  case  cited  by  the  accused  in  Jai  Prakash v.  State  (Delhi

Administration), [(1991)  2  SCC 32],  where  there  was an  altercation  and

exchange of hot  words between the accused and the deceased.  Then,  the

appellant  took  out  a  Kirpan  (Churra)  from  his  waist  and  stabbed  the

deceased  in  the  chest.  The  accused  contended  that  since  there  was  an

altercation  and  during  the  same,  he  suddenly  whipped  out  a  kirpan  and

inflicted only one injury, it was reasonable to infer that he would not have

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intended to cause that particular injury, and consequently, Clause Thirdly of

Section 300 is not attracted.

This contention was overruled by the Court.  

In  Bhagwan Bahadure v.  State of Maharashtra,  [2007 (11) SCALE

519], this Court opined :

“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.”

Hence,  the  mere  fact  that  single  blow  was  administered  doesn’t

preclude the existence of intention.

23. Reliance  has  been  placed  by  learned  counsel  for  the  State,  to  a

decision of this Court  in  State of Punjab v.  Tejinder Singh & Anr. [AIR

1995  SC  2466].   There  two  persons  inflicted  Gandasa  blows  on  the

deceased.  The altercation had already taken place four  days prior to the

incident  over the boundary line of the plots of  the parties.   The accused

persons came heavily armed shouting that the deceased should not be spared

at a point of time when his wife had brought breakfast for him and he had

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gone  to  hand  pump  to  bring  water  in  a  pitcher.   It  was  even  in  the

aforementioned situation, this Court held :

“In view of our  above findings  we have  now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with  Section  34,  IPC.   It  appears  from  the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates.  If really the appellants had intended to commit  murder,  they  would  not  have  certainly used the blunt edge when the task could have been expedited and assured with the sharp edge.  Then again we find that except one injury on the head, all  other  injuries  were  on  non-vital  parts  of  the body.  Post-mortem report further shows that even the  injury  on  the  head  was  only  muscle  deep. Taking these facts into consideration we are of the opinion  that  the  offence  committed  by  the appellant  is  one under  Section  304 (Part  I),  IPC and not under Section 302, IPC.”

24. It is, therefore, a case where  Virsa Singh would be applicable.  The

injury inflicted was a serious one, it by itself may not be decisive but is one

of the relevant factors in regard to the application of fourthly of section 300.

Application of the said provisions must be made keeping in mind the fact

situation obtaining and the legal principles noticed hereinbefore.

25. For  the  reasons  aforementioned,  we  are  of  the  opinion  that  the

appellant are guilty of commission of the offence under Section 304 Part-I

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and  not  Section  304  Part-II  thereof.   The  learned  Sessions  Judge  has

imposed a sentence of eight years on the appellant and five years Rigorous

Imprisonment on appellant No.2.  We, however, reduce the same, keeping in

view the peculiar  facts  and circumstances  of  this  case,  to  five years  and

three years respectively.

26. Appeal is allowed to the above extent.

……………..…………J. [S.B. Sinha]

               .………………….……J.        [V.S. Sirpurkar]

New Delhi April 29, 2008

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