REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      826          OF 2009 (Arising out of S.L.P. (Crl.) No.7458 of 2008)

Santhanam      ..Appellant

Versus

State of Tamil Nadu  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of  

the Madras High Court,  Madurai  Bench,  upholding the conviction of the  

appellant  for  offence  punishable  under  Sections  302  of  the  Indian  Penal  

Code,  1860  (in  short  the  ‘IPC’).   The  co-accused  was  tried  for  offence  

punishable for offence punishable under Section 302 read with Section 114  

and 506(2) IPC and was found not guilty and was acquitted of the charges.    

3. Prosecution version, in a nutshell, is as follows:

The incident in question took place at around 2 p.m. on 9.12.2001,  

P.W.1 and her husband were working in the Postal Department and they are  

the owners of land in their native place, Kanjeerimalaipudur Kattukottagai.  

Thiruppathy (hereinafter referred to as the ‘deceased’) was employed with  

them  as  a  farm  servant.  The  land  of  the  accused-appellant  is  situated  

adjacent to the land of P.W. 1. They had a dispute regarding water pipe line.  

Two days before the date of incident i.e. 9.12.2001 when the deceased was  

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irrigating, the appellant closed the water pipe line. The deceased asked him  

why  he  had  closed  the  water  pipe  line,  the  appellant  abused  him  and  

assaulted  him  with  a  stick.  The  deceased  filed  a  complaint  in  the  

Uppiliyapuram Police Station. When P.W. 1 and her husband came to know  

about the same on 11.12.2001, they wanted to convene a Panchayat  and,  

therefore, P.W.1, her husband and others gathered in front of the house of  

P.W. 1 at about 2.00 p.m. At that time, the appellant and the second accused  

came in a TVS 50 vehicle and both of them pulled the deceased Thiruppathy  

and assaulted him with hands.  They intervened and prevented them from  

attacking the deceased. When the deceased, Thiruppathy went to the house  

of Dhandapani, the appellant and the second accused followed the deceased.  

The appellant attacked the deceased, Thiruppathy with a wooden log on his  

right shoulder, right forearm and on his head and the deceased fell down  

and  fainted.  The  second  accused  took  out  billhook  out  of  his  shirt  and  

threatened the witnesses with dire consequences. Then the second accused  

gave billhook to the appellant and both of them ran away from the place of  

occurrence. Immediately thereafter, P.W. 1 and her husband, Ramalingam  

went to Uppiliyapuram Police Station and gave a complaint and on the basis  

of  which  F.I.R.  was  lodged  and  a  case  was  registered  as  Crime  No.  

658/2001  under  Section  302  I.P.C.  and  investigation  started.  P.W.12,  

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conducted  the  Post-Mortem on 12.12.2001  and opined  that  the  deceased  

appeared to have died of shock and haemorrhage due to injuries sustained  

on head.

Investigation  was  undertaken  and  on  completion  thereof  the  

chargesheet was filed.

The  case  was  committed  to  the  Court  of  Sessions.   Charges  were  

framed. Since the accused persons pleaded innocence, trial was held.

In  order  to  establish  accusations,  14  witnesses  were  examined.  In  

order to prove its plea of innocence, three witnesses were examined.  The  

Trial Court found that accusations were not established against the second  

accused and he was acquitted. Before the High Court the primary stand was  

that  the  so  called  eye  witnesses  could  not  have  seen  the  occurrence  as  

claimed.  This according to PW.4 she actually did not see the occurrence  

and also not did not see the accused persons assaulting but she came and  

found that the deceased was lying severely injured.  It was also submitted  

that  the  medical  evidence  was  at  variance  with  the  so  called  ocular  

evidence.  Large number of criminal and civil cases were pending between  

the parties and the present case was the outcome of enmity. In any event, the  

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occurrence took place in course of altercation and Section 302 IPC has no  

application. The deceased was working under PW1 and her husband. On the  

earlier occasion when the deceased went over to the field and questioned the  

conduct  of  the  accused,  altercation  took  place  and  complaint  was  given  

against  him.  Panchayat  was  convened.   It  was  also  submitted  that  the  

injuries  were on non-vital  parts  and,  therefore,  it  cannot  be said that  the  

accused had intention to cause death. The High Court did not accept  the  

stand that the occurrence took place in the course of altercation and other  

pleas.  

4. The stand taken before the High Court was reiterated in the present  

appeal.  Learned counsel for the respondent-State supported the judgment.

5. The basic question is whether Section 302 IPC has application.

6. In the scheme of the IPC culpable homicide is genus and ‘murder’ its  

specie.  All  ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking  

generally,  ‘culpable  homicide’  sans  ’special  characteristics  of  murder  is  

culpable  homicide  not  amounting  to  murder’.  For  the  purpose  of  fixing  

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punishment,  proportionate  to  the  gravity  of  the  generic  offence,  the  IPC  

practically recognizes three degrees of culpable homicide.  The first is, what  

may be called, ‘culpable homicide of the first degree’. This is the gravest  

form of culpable  homicide,  which is defined in Section 300 as ‘murder’.  

The second may be termed as ‘culpable homicide of the second degree’.  

This  is  punishable  under  the  first  part  of  Section  304.  Then,  there  is  

‘culpable homicide of the third degree’.  This is the lowest type of culpable  

homicide and the punishment provided for it is also the lowest among the  

punishments provided for the three grades. Culpable homicide of this degree  

is punishable under the second part of Section 304.

7. The academic distinction between ‘murder’ and ‘culpable homicide  

not amounting to murder’ has always vexed the Courts.  The confusion is  

caused, if Courts losing sight of the true scope and meaning of the terms  

used by the legislature in these sections, allow themselves to be drawn into  

minute abstractions.  The safest way of approach to the interpretation and  

application of these provisions seems to be to keep in focus the keywords  

used  in  the  various  clauses  of  Sections  299  and  300.  The  following  

comparative table will be helpful  in appreciating the points of distinction  

between the two offences.

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Section 299 Section 300

A person commits culpable homicide Subject to certain exceptions

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

death is caused is done -

INTENTION

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

   death; or causing death; or

(b) with the intention of causing (2) with the intention of  

   such bodily injury as is likely  causing such bodily injury  

   to cause death; or as the offender knows to be

likely to cause the death of

the person to whom the harm  

is caused;  

or

(3) With the intention of  

causing bodily injury to any

person and the bodily injury

intended to be inflicted  is sufficient in the  

ordinary  course  of  nature

to cause death; or

KNOWLEDGE

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(c) with the knowledge that the act      (4) with the knowledge that

is likely to cause death. the act is so imminently

dangerous that it must in all

probability cause death or

such bodily injury as is  

likely to cause death, and  

without any excuse for  

incurring the risk of causing

death or such injury as is

mentioned above.

8. 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  killing  within  the  ambit  of  this  

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clause.  This aspect of clause (2) is borne out by illustration (b) appended to  

Section 300.

9. Clause (b) of Section 299 does not postulate any such knowledge on  

the  part  of  the  offender.   Instances  of  cases  falling  under  clause  (2)  of  

Section  300  can  be  where  the  assailant  causes  death  by  a  fist  blow  

intentionally given knowing that the victim is suffering from an enlarged  

liver, or enlarged spleen or diseased heart and such blow is likely to cause  

death  of  that  particular  person  as  a  result  of  the  rupture  of  the  liver,  or  

spleen or the failure of the heart, as the case may be.  If the assailant had no  

such knowledge about the disease or special  frailty of the victim, nor an  

intention to cause death or bodily injury sufficient in the ordinary course of  

nature to  cause death,  the offence will  not  be murder,  even if  the injury  

which caused the death, was intentionally given. In clause (3) of Section  

300,  instead  of  the  words  ‘likely  to  cause  death’  occurring  in  the  

corresponding  clause  (b)  of  Section  299,  the  words  “sufficient  in  the  

ordinary course of nature” have been used.  Obviously, the distinction lies  

between  a  “bodily  injury  likely  to  cause  death”  and  a  “bodily  injury  

sufficient in the ordinary course of nature to cause death.” The distinction is  

fine but real and if overlooked, may result in miscarriage of justice.  The  

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difference between clause (b) of Section 299 and clause (3) of Section 300  

is  one  of  the  degree  of  probability  of  death  resulting  from the  intended  

bodily injury.  To put it more broadly, it is the degree of probability of death  

which determines whether a culpable homicide is of the gravest, medium or  

the lowest degree.  The word ‘likely’ in clause (b) of Section 299 conveys  

the sense of probable as distinguished from a mere possibility.  The words  

“bodily injury.......sufficient in the ordinary course of nature to cause death”  

means that  death will  be the “most probable” result  of the injury, having  

regard to the ordinary course of nature.

10. For cases to fall within clause (3), it is not necessary that the offender  

intended to cause death, so long as the death ensues from the intentional  

bodily injury or injuries sufficient to cause death in the ordinary course of  

nature.  Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt  

illustration of this point.

11. 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  

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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 is 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.

12. The ingredients of clause “Thirdly” of Section 300, IPC were brought  

out by the illustrious Judge in his terse language as follows:

“To  put  it  shortly,  the  prosecution  must  prove  the  following facts before it can bring a case under Section  300, “thirdly”.

First,  it  must  establish,  quite  objectively,  that  a  bodily  injury is present.

Secondly, the nature of the injury must be proved.  These  are purely objective investigations.

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Thirdly, it must be proved that there was an intention to  inflict that particular bodily injury, that is to say that it  was not accidental or unintentional,  or that  some other  kind of injury was intended. Once these three elements are proved to be present, the  enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just  described made up of the three elements set out above is  sufficient to cause death in the ordinary course of nature.  This  part  of  the  enquiry  is  purely  objective  and  inferential and has nothing to do with the intention of the  offender.”

13. The  learned  Judge  explained  the  third  ingredient  in  the  following  

words (at page 468):

“The  question  is  not  whether  the  prisoner  intended  to  inflict  a  serious  injury or  a trivial  one but  whether  he  intended to inflict the injury that is proved to be present.  If he can show that he did not, or if the totality of the  circumstances justify such an inference, then of course,  the intent that the section requires is not proved.  But if  there is nothing beyond the injury and the fact that the  appellant inflicted it, the only possible inference is that  he  intended  to  inflict  it.  Whether  he  knew  of  its  seriousness or intended serious consequences, is neither  here  or  there.   The question,  so far as  the  intention  is  concerned, is not whether he intended to kill, or to inflict  an  injury  of  a  particular  degree  of  seriousness  but  whether he intended to inflict the injury in question and  once the existence of the injury is proved the intention to  

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cause  it  will  be  presumed  unless  the  evidence  or  the  circumstances warrant an opposite conclusion.”

14. These observations of Vivian Bose, J. have become locus classicus.  

The test  laid down by  Virsa Singh’s case (supra)  for the applicability of  

clause “Thirdly” is now ingrained in our legal system and has become part  

of  the  rule  of  law.   Under  clause  thirdly  of  Section  300  IPC,  culpable  

homicide is murder, if both the following conditions are satisfied:  i.e. (a)  

that the act which causes death is done with the intention of causing death  

or is  done with the intention of causing a bodily injury; and (b) that the  

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

to cause death.  It must be proved that there was an intention to inflict that  

particular  bodily  injury  which,  in  the  ordinary  course  of  nature,  was  

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

injury that was intended to be inflicted.

15. Thus, according to the rule laid down in  Virsa Singh’s case, even if  

the  intention  of  accused  was  limited  to  the  infliction  of  a  bodily  injury  

sufficient to cause death in the ordinary course of nature, and did not extend  

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to the intention of causing death, the offence would be murder.  Illustration  

(c) appended to Section 300 clearly brings out this point.

16. 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 incurring the  

risk of causing death or such injury as aforesaid.

17. 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  

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telescoped into each other that it may not be convenient to give a separate  

treatment to the matters involved in the second and third stages.

18. The position was illuminatingly highlighted by this Court in State of  

Andhra  Pradesh v.  Rayavarapu Punnayya and Anr. (1976 (4)  SCC 382),  

Abdul Waheed Khan @ Waheed and Ors.   v. State of Andhra Pradesh (JT  

2002 (6) SC 274), and Augustine Saldanha v. State of Karnataka (2003 (10)  

SCC 472) and Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).

19. In the peculiar facts of the case, the proper conviction would be under  

Section 304 Part I.  Custodial sentence of 10 years would meet the ends of  

justice.   

20. The appeal is allowed to the aforesaid extent.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 24, 2009

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