REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 206 of 2007

Balkar Singh ….Appellant  

Versus

State of Uttarakhand  ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. In this appeal challenge is to the judgment of a Division Bench of the

Uttarakhand  High  Court  upholding  the  conviction  of  the  appellant  as

recorded by learned First Additional Sessions Judge, Nainital under Section

302 of Indian Penal Code, 1860 (in short the ‘IPC’). The allegation was that

accused committed murder of Ajeet Singh (hereinafter referred to as ‘D-1’)

and Bajan Singh (hereafter referred to as ‘D-2’) and attempted to commit

murder of Roop Singh for which he was convicted under Section 307 IPC

and sentenced to 10 years RI.

2. Prosecution version in a nutshell is as follows:

On 01.01.1983,  at  about  5:00  P.M.,  D-1  along  with  Roop  Singh

(P.W. 2) (injured) and Harbhajan Singh (P.W.1) informant, were going in a

tractor  to take flour from wheat  flour mill  of one Ram Prasad in village

Paigakhas, situated within the limits of P.S. Kashipur (earlier part of District

Nainital.  At about 5:15 p.m., when they reached and got down in village

Paigakhas, accused/appellant Balkar Singh met them and asked D-1 to have

some wine with him, as it was a chilly day. On this, D-1 curtly replied that

he would not have wine, bought with the money of the accused/appellant.

There was old enmity between Balkar Singh (accused/appellant) and D-1 as

earlier  on a report  lodged against  accused/appellant  Balkar  Singh by the

family members of D-1, he had been convicted but later on, acquitted by the

appellate  court.  When Balkar Singh reiterated  his  request  to  have drinks

with him and not to develop further the enmity between them, D-1 again

firmly told that he would not have liquor with Balkar Singh and he may do

whatever he likes. This made Balkar Singh feel insulted and he threatened

D-1 that he will have to face the consequence of this refusal. Then Balkar

Singh went to his  house to bring his  gun and in the meantime D-1 after

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taking flour from the wheat flour mill, proceeded for his further journey.

When D-1 and others, in their tractor, reached near temple of goddess in

village Paigakhas, accused Balkar Singh armed with a gun, fired a shot at

D-1. It  was around 5:30 p.m. D-1 on seeing Balkar Singh, firing at  him,

drove the tractor a bit faster. Balkar Singh, kept on firing shots, one after

another  and injured D-1,  Bhajan Singh and Roop Singh.  D-2 along with

Roop Singh (P.W. 2) and Harbhajan Singh (P.W.1), in an attempt to save

their lives, jumped from the tractor and took shelter behind rubbish heap by

the  side  of  pathway in  the  village.  D-1  died  on  the  spot  in  the  tractor.

Meanwhile, villagers started assembling near the scene of occurrence and

accused-appellant Balkar Singh, by then left the place. Injured Roop Singh

and D-2 were taken to Civil Hospital. But D-2 succumbed to the injuries in

the hospital. Harbhajan Singh (PW-1) lodged oral First Information Report

at police station,  Kashipur,  at  7:20 p.m. on the very day i.e.  01.01.1983,

which was registered as crime No. 2 of 1983 under Section 302/307 I.P.C.

against accused Balkar Singh. On the basis of the oral report, chick report

(Ext. A-1) was prepared and necessary entry in the general diary was made,

extract of which is Ext. A-23.  Devendra Kumar Thapliyal (PW-8) Inspector

Incharge of the police station- Kashipur, took up the investigation of the

case. Meanwhile, the injuries of Roop Singh (P.W. 2) were recorded in the

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Civil Hospital at 7:45 p.m. on the same day i.e. 01.01.1983. Inquest report

(Ext. A-3) was prepared after dead body of D-1 was taken into possession

by the police on 02.01.1983, at 7:30 a.m. and police form No. 33 (Ext. A-4),

sketch of his dead body (Ext. A-5), police form No. 13 (Ext. A6) and letter

(Ext.  A-7)  to  Chief  Medical  Officer  for  post  mortem examination,  were

prepared.  After  the  death  of  D-2,  his  dead  body  was  also  taken  into

possession  by police  on  02.01.1983,  at  about  12:30  p.m.  and an  inquest

report (Ext. A-15), police form No. 33 (Ext. A- 16), sketch of his dead body

(Ext. A-17), police form No. 13 (Ext.  A-20) and letter (Ex.A-8) to Chief

Medical Officer,  requesting for post  mortem examination, were prepared.

The Investigating Officer prepared the site plan and recorded the statements

of the witnesses. He also prepared the recovery memo of the turban lying at

the place of occurrence. After completion of investigation the Investigating

Officer  submitted  charge  sheet.  Since  the  accused  persons  pleaded

innocence, trial was held.  

Placing reliance on the evidence of an injured witness PW-2 and the

eye witnesses PWs 1 and 3 the trial Court recorded the conviction and found

the appellant guilty.  

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3. In appeal the basic stand was that the case at hand is not covered by

Section 302 IPC. The High Court did not accept the stand and dismissed the

appeal.   The  stand  taken  before  the  High  Court  was  re-iterated  in  this

appeal.  

4. Learned  counsel  for  the  State  supported  the  judgment  of  the  trial

Court as affirmed by the High Court.  

5. It is to be noted that the background as projected by the prosecution is

that  the accused requested  the  deceased  to  have  some wine  with him as

weather was very cold.  D-1 replied that he did not like to have wine with a

person  like  the  accused.  On  this  the  accused  pleaded  that  the  family

members of D-1 and D-2 had got him punished and if he did not take wine

with him the enmity would be continued. On this D-2 told him that they did

not  have  wine  with  people  like  the  accused  and he  can  do  whatever  he

wanted to do. On this the appellant went inside the house and came back

with a gun.   The accused, deceased and the witnesses were travelling in a

tractor which was moving at a high speed. The appellant did not direct first

shot towards the deceased, he fired in the air and thereafter indiscriminately

fired shots.  

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

7. 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

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.

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

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

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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.

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

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(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.

9. 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

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that  such harm would not  in  the ordinary way of  nature  be sufficient  to

cause death of a person in normal health or condition.  It is noteworthy that

the ‘intention to cause death’ is not an essential requirement of clause (2).

Only the intention of causing the bodily injury coupled with the offender’s

knowledge  of  the  likelihood  of  such  injury  causing  the  death  of  the

particular victim, is sufficient to bring the killing within the ambit of this

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

Section 300.

10. 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

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

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

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

between a bodily injury likely to cause death and a bodily injury sufficient

in the ordinary course of nature to cause death. The distinction is fine but

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

between clause (b) of Section 299 and clause (3) of Section 300 is one of

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.

11. 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

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

illustration of this point.

12. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose,

J. speaking for the Court, explained the meaning and scope of clause (3). It

was observed that the prosecution must prove the following facts before it

can bring a case under Section 300, “thirdly”.  First, it must establish quite

objectively, that a bodily injury is present; secondly the nature of the injury

must be proved.  These are purely objective investigations.  Thirdly, it must

be proved that there was an intention to inflict that particular injury, that is

to say, that it was not accidental or unintentional or that some other kind of

injury was intended.  Once these three elements are proved to be present, the

enquiry proceeds further, and fourthly it must be proved that the injury of

the type just  described made up of the three elements  set  out  above was

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

enquiry is purely objective and inferential and has nothing to do with the

intention of the offender.

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

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

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

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

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

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

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.”

14. 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

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

15. 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.

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16. 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

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

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

17. 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.

18. The above are only broad guidelines and not cast iron imperatives. In

most  cases,  their  observance  will  facilitate  the  task  of  the  Court.  But

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sometimes the facts are so intertwined and the second and the third stages so

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.

19. 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),  Augustine  Saldanha v.  State  of  Karnataka (2003 (10)

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

Laxmannath v. State of Chhatisgarh (SLP (Crl.) No. 6403 of 2006)

20. If the background facts are considered keeping in view the principles

of law as noted above, the inevitable conclusion is that the offence is not

covered  by  Section  302  IPC and  the  proper  conviction  would  be  under

Section 304 Part I IPC. Custodial sentence of 8 years would meet the ends

of justice in the peculiar facts of the case.    

21. The appeal is allowed to the aforesaid extent.  

………….....................................J. (Dr. ARIJIT PASAYAT)              

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………….……….........................J.          (ASOK KUMAR GANGULY)

New Delhi, March 31, 2009   

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