REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 911 OF 2009 [Arising out of SLP (Crl.) No. 1527 of 2008]

Bala Baine Linga Raju …Appellant

Versus

State of A.P. …Respondent

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a judgment  

and order dated 23.04.2007 passed by a learned Single Judge of the High  

Court of Judicature at Andhra Pradesh in Criminal Appeal No. 1159 of 2002  

whereby and whereunder it, while upholding the judgment and conviction of  

sentence passed by the learned Additional Sessions Judge under Section 304  

Part I of the Indian Penal Code and setting aside the order of sentence of

imprisonment of seven years, released the appellant under the Probation of  

Offenders Act, 1958 (for short “the Act”) by purporting to grant appropriate  

amount of compensation to PW-2, directing:

“…Thus, it  is  ordered that the appellant  shall  be  released under Section 4 of Probation of Offenders  Act, 1958 on his executing a personal bond for Rs.  10,000/- to keep peace for a period of two years  and on his further payment of compensation of Rs.  1,00,000/- (Rupees one lakh only) to P.W.2, wife  of the deceased, under Section 5 of the Probation  of Offenders Act, 1958.  As the provisions of the  Probation of Offenders Act, 1958 do not provide  for  default  sentence  in  case  of  failure  to  pay  compensation and provide only for recovery of the  same  as  fine,  it  is  specifically  ordered  that  the  compensation awarded shall be treated as the one  under Section 357 Cr.P.C. as well and in case of  failure  on  the  part  of  the  appellant  to  pay  compensation, he shall undergo imprisonment for  three years.  Time for payment of compensation is  three months from the date of receipt of a copy of  this order.”

3. This Court while issuing notice directed the appellant also to show  

cause as to why the sentence shall not be enhanced.   

4. Before, however, we consider the merit of the matter, we may notice  

the factual matrix involved herein.   

2

The parties are neighbours.  The incident took place on 24.08.1999 at  

village Chilkur.  Allegedly, PW-2, wife of the deceased while feeding her  

child scolded him describing him as mischievous.  Accused No. 2 thought  

that  the  said  remarks  of  PW-2  were  directed  against  her.   She  and  her  

husband picked up a quarrel with PW-2.  The deceased, the husband of PW-

2, came there and got himself involved in the quarrel.  Appellant who was  

inside the house came out with a scissor and stabbed the deceased.

5. The learned Trial Judge keeping in view the facts and circumstances  

of this case, opined:

“Hence,  it  won’t  attract  the  ingredients  of  the  alleged  offence  under  Section  302  I.P.C.  and  it  attracts  the  offence  under  Section  304  Part  I  of  I.P.C.”

6. Appellant was sentenced to undergo seven years’ imprisonment.  He  

preferred an appeal thereagainst.  By reason of the impugned judgment, as  

noticed  hereinbefore,  while  maintaining  the  judgment  of  conviction  and  

sentence passed by the learned Trial Judge under Section 304, Part I of the  

Indian Penal Code, the impugned direction was issued.

3

7. Mr.  Anand,  learned  counsel  appearing  on  behalf  of  the  appellant  

would contend that keeping in view the age of the appellant on the date of  

commission of the offence, the High Court should have invoked Section 6 of  

the Act and in that view of the matter,  the impugned judgment cannot be  

sustained.

8. Mrs. D. Bharathi Reddy, learned counsel appearing on behalf of the  

respondent, on the other hand, supported the impugned judgment.

9. Before  adverting  to  the  contentions  raised  by  the  parties,  we may  

notice that the lung and heart injuries were caused to the deceased.  He died  

“due to lot of bleeding”.   

Appellant was inside the house.  He admittedly was not a party to the  

quarrel.  So far as he was concerned, neither PW-2 nor the deceased caused  

any provocation to him.  The manner in which the assault had taken place  

must also be noticed inasmuch as he had injured the lung and heart of the  

deceased. It is also not a case where the lives of the parents were in danger.

10. Section  300  of  the  Indian  Penal  Code  provides  that  culpabale  

homicide would be murder if the act by which the death is caused is done  

4

with the intention of causing death or if it is done inter alia 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.  Exception I appended  

thereto, however, provides that culpabale homicide would not be murder if  

the offender is deprived of the power of self-control by grave and sudden  

provocation and causes the death of the person who gives provocation.  The  

said ‘Exception’ is, however, subject to the following provisos:

“First.--That  the  provocation  is  not  sought  or  voluntarily provoked by the offender as an excuse  for killing or doing harm to any person.

Secondly.--That  the  provocation  is  not  given  by  anything  done  in  obedience  to  the  law,  or  by  a  public servant in the lawful exercise of the powers  of such public servant.”

The Explanation appended thereto states that whether the provocation  

was grave and sudden enough to prevent  the offence from amounting to  

murder would be a question of fact.

11. Applicability  of  the  aforementioned  provisions  came  up  for  

consideration in Virsa Singh v. State of Punjab [AIR 1958 SC 465] wherein  

the following standard was laid down:

5

“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.”

12. This  Court  in  Kesar  Singh  & Anr. v.  State  of  Haryana [2008  (6)  

SCALE 433], wherein a Kassi (Spade) was used from the reverse side on the  

deceased, noticed the deviation from Virsa Singh tests beginning from State  

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

to hold:

“Unfortunately,  the  propositions  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  

6

case  that  the  accused  had  intended  to  cause  the  hemorrhage etc that ultimately led to death.”  

This  Court  furthermore  noticed  the  importance  of  the  term “fight”  

used in Section 299 of the Indian Penal Code to opine:

“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.”

Like the present case, therein also the court noted that only because a  

single knife blow had been given, the same, by itself, would not bring the  

case within the purview of ‘Thirdly’ of Section 300 of the Indian Penal Code  

wherefor  the  court  is  required to  take into  consideration the  surrounding  

circumstances.  It was held that  Virsa Singh principle should be applied in  

the aforementioned fact situation.

The legal principle enunciated therein has recently been followed by  

this Court in Mohd. Asif v. State of Uttaranchal [2009 (3) SCALE 695]

7

13. Mr. Anand, however, strongly relied upon a decision of this Court in  

Mavila Thamban Nambiar v. State of Kerala [AIR 1997 SC 687] to contend  

that almost in a similar situation this Court opined that only an offence under  

Section 304 Part II of the Indian Penal Code has been made out.   

We  may  notice  the  relevant  part  of  the  judgment,  which  reads  as  

under:

“…After giving our careful thought to the nature  of offence, we are of the considered view that the  offence of the appellant would more appropriately  fall under Section  304 part II of the Indian Penal  Code.  The  appellant  had given  one  blow with  a  pair  of  scissors  on the  vital  part  of  the  body of  Madhavan and, therefore,  it  would be reasonable  to infer that he (appellant) had knowledge that any  injury with the pair of scissors on the vital part of  would  cause  death  though  he  may  not  have  intended  to  commit  the  murder.  We accordingly  alter the conviction of the appellant from 302 IPC  to one under Section 304 part II of the IPC.”

In that case also, Virsa Singh (supra) has been deviated from.

No reason has been assigned therein.   Why conviction was altered  

from Section  302 to  304 Part  II  of  the  Indian  Penal  Code has  not  been  

disclosed.  Once it is held that injury was caused on a vital part of the body  

8

with knowledge that it  may cause death or such injury which is likely to  

cause death, the ingredients of provisions of Section 300 must be held to  

have  been  proved  in  view of  the  decision  of  this  Court  in  Virsa  Singh  

(supra).

14. This case, thus, although attracts the principles of Virsa Singh (supra)  

in terms whereof it was possible to arrive at a conclusion that the appellant  

in fact is guilty of commission of an offence under Section 302 of the Indian  

Penal Code, we, in absence of any appeal having been preferred by the State  

from the judgment of conviction and sentence passed by the learned Trial  

Judge, are not in a position to arrive at the said conclusion.       

15. It is on the aforementioned finding the applicability of the provisions  

of the Act may be noticed.   It  was enacted to provide for the release of  

offenders on probation or after due admonition and for matters connected  

therewith.   

16. Section  4  of  the  Act  empowers  the  court  to  release  a  person  on  

probation of good conduct, subject to the conditions that the offence is not  

punishable  with  death  or  imprisonment  for  life.   Only  in  the  event,  the  

9

provisions of the said Act are applicable, Section 6 of the Act can be taken  

recourse to.

17. Appellant was charged with commission of an offence under Section  

302 of the Indian Penal Code.  He has been found guilty under Section 304  

Part I thereof which provides for imprisonment for life or imprisonment of  

either description of a term which may extend to imprisonment for life.  In  

this view of the matter, the provisions of the Act are not applicable.

18. Mr.  Anand submits  that  the  learned  Trial  Judge has  not  heard the  

appellant on the question of sentence as is provided for under Sub-section  

(2) of Section 235 of the Code of Criminal Procedure.  Although the learned  

counsel is correct,  but keeping in view the fact that the conviction of the  

appellant was under Section 304 Part I of the Indian Penal Code, we are of  

the opinion that even otherwise the sentence imposed on him is just  and  

proper.

19. We, therefore, have no hesitation in holding that the High Court was  

not correct in invoking the provisions of the Act.  While setting aside that  

part  of  the  judgment  of  the  High  Court,  we  restore  the  judgment  of  

10

conviction and sentence passed by the learned Trial Judge.  The appeal is  

disposed of with the aforementioned directions.

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 5, 2009

11