REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1537  OF 2008 (Arising out of S.L.P. (Crl.) No.1988 of 2008)

Budhi Lal  …..Appellant

Versus

State of Uttarakhand  ….Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. Challenge in this appeal is to the judgment of a Division

Bench of the Uttarakhand High Court dismissing the appeal

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filed  by the  appellant.   In  the  appeal  challenge  was to  the

order of conviction recorded by the learned Sessions Judge,

Chamoli in Sessions Trial No.8 of 1986 for offence punishable

under  Section  302  the  Indian  Penal  Code,  1860  (in  short

‘IPC’).  The  appellant  was  sentenced  to  undergo  rigorous

imprisonment for life.

4. Prosecution  story  in  brief  is  that  house  of  Budhi  Lal

(appellant) is one kilometer away from village abadi in village

Airash. Appellant got married firstly to one Sobati Devi, but he

had no issue from her.  Later, he got married to Jashu Devi

(hereinafter referred to as the ‘deceased’) and from her he had

seven children.  Out of the seven, eldest daughter Sushila was

married.   Both  the  ladies  used  to  live  with  Budhi  Lal  in

aforesaid house.  Jaspal (PW.3) of village Kaphalkhet came to

the  house  of  Budhi  Lal  on  9.8.1985,  in  connection  with

purchase of a pair of bullocks, belonging to him.  The deal was

settled at Rs.1200/- and in that night Jaspal  stayed in the

house of Budhi Lal.  After having meals the family members

and Jaspal slept in the house.  In said intervening night i.e.

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9/10th August,  1985,  appellant  Budhi  Lal  at  about  2  a.m.

committed  murder  of  Jashu  Devi.   According  to  the

prosecution Jaspal  woke up to go to toilet  and saw from a

window that  Budhi  Lal  sitting  on the  chest  of  Jashu Devi,

assaulting her with his hands.  On being questioned, why he

is doing so, Budhi Lal told him that he was telling his wife to

behave.  Appellant asked Jaspal being guest he should leave

the place and sleep in another room.  Next morning, Budhi Lal

told the villagers that his wife Jashu Devi has died of pain in

her  stomach.   He  asked  Jaspal  to  go  to  the  houses  of  his

brothers and relations living in village Jilasu and inform them

about the death of Jashu Devi.  Jaspal (PW.3) informed the

relatives of Budhi Lal, as told by him about the death of his

wife due to pain in her stomach and came back to the village.

Meanwhile,  Sobati  Devi  informed the  village  Pradhan about

the death of Jashu Devi.  The village Pradhan came to the spot

at 10 a.m. and thereafter got sent the information of death of

Jashu  Devi  to  Patwari  of  the  area  (in  Uttarakhand  hills

Patwaris  are  given  police  powers).   The  Patti  Patwari  Sri

Kareem Bux (PW.6) received the information on 10.8.1985 at

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his Chauki when he returned back in the evening.  The entry

of written information (Ext. A-2) sent through Ashadu Lal was

made in the General Diary (copy of which is extract Ext. A-3),

by the Investigation Officer Kareem Bux on the next day at

11.30 a.m., Patwari came to the spot and took the dead body

in his possession, sealed it and prepared the inquest report

(Ext.  A-4)  and  sketch  of  the  dead  body  (Ext.  A-5).  He  also

prepared  a  letter  of  request  (Ext.  A-6)  for  the  post  mortem

examination and sent the dead body for autopsy.  Meanwhile,

he prepared site plan (Ext. A-9) on same day i.e. 11.8.1985.

He  also  recorded  the  statements  of  the  witnesses  of  the

inquest report.  The post mortem examination was conducted

by Dr.  S.K. Srivastava (PW.1)  on 12.8.1995 at 4.30 p.m. at

District Headquarter, Gopeshwar (District Chamoli).  The said

Medical Officer prepared post mortem examination report (Ext.

A-1). He opined that Jashu Devi had died due to suffocation

as  a  result  of  obstruction  in  respiratory  passage.   He  also

recorded the ante mortem injuries found on the body of the

deceased.  Investigating Officer Kareem Bux (PW.6) thereafter

examined  Budhi  Lal  and  his  daughter  Sushila.   The

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Investigating  Officer  also  interrogated  other  witnesses.   On

completion  of  the investigation,  charge sheet  (Ext.  A-8)  was

filed  by  Investigating  Officer  on  20.11.1985,  before  the

Magistrate concerned.                           

5. The  case  was  committed  by  the  court  of  learned

Magistrate  concerned  to  the  Court  of  Sessions.   Since  the

appellant  pleaded  innocence,  trial  was  held.   Six  witnesses

were examined to further the prosecution version. Primarily,

relying  on  the  evidence  of  PW.3,  the  learned  Trial  Judge

directed conviction of the accused, as aforenoted.  The Trial

Court, it needs to be pointed out, also referred to the evidence

of PW.5 before whom accused gave varying versions as to how

the deceased had died.  The Trial Court also took note of the

fact that the deceased and the accused were last seen and in

the examination under Section 313 of the Code of Criminal

Procedure,  1973  (in  short  ‘the  Code’),  the  accused  had

accepted that he and the deceased were sleeping together in

the night of the incident.

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6. In appeal before the High Court, the primary stand was

that the evidence of PW.3 should not have been relied upon

and in any event, a case under Section 302 IPC was not made

out.  The High Court did not find substance in the plea and

dismissed the appeal.         

7. In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that presence of PW.3 in the house has

not been established and in any event, in view of the accepted

prosecution version, a case under Section 302 IPC is not made

out.    

8. Learned  counsel  for  the  State,  on  the  other  hand,

supported the judgment.

9. Coming to the evidence of PW.3, it appears that PW.3 has

given enough reason as to why he was present in the house.

Even otherwise, PW.4, the daughter of the accused, though,

she  resiled  from  the  statement  made  during  investigation,

clearly  stated  that  PW.3  was  sleeping  in  their  house  in  a

separate  room.  This witness further stated that her father,

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the accused suspected fidelity of the deceased and was under

the  impression  that  she  was  having  illicit  relationship  with

PW.3. In the examination under Section 313 Cr.P.C. also, the

accused had accepted this position.  Therefore, the presence

of PW.3 has been clearly established by evidence on record.

Apart from that, as rightly noted by the Trial Court and the

High  Court,  the  accused  accepted  that  he  was  with  the

deceased in the night of occurrence and they were sleeping in

the same room.

10. Therefore,  the  Trial  Court  and  the  High  Court  were

justified in holding the appellant guilty.                

11. The  residual  question  is  whether  Section 302 IPC  has

application?

12. This brings us to the crucial question as to which was

the appropriate provision to be applied.    In the scheme of the

IPC culpable homicide is genus and ‘murder’ its specie.  All

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

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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.

13. 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

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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 culpable homicide is murder  

caused is done – 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

****

(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.

14. 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

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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 the

killing within the ambit of this clause.  This aspect of clause

(2) is borne out by illustration (b) appended to Section 300.

15. 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

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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 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

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

cause  death”  mean  that  death  will  be  the  “most  probable”

result of the injury, having regard to the ordinary course of

nature.

16. 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.

17. 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

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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.

18. 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.”

19. 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

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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.”

20. 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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21. Thus, according to the rule laid down in  Virsa Singh’s

case (supra), 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.

22. 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

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been  committed  by  the  offender  without  any  excuse  for

incurring the risk of causing death or such injury as aforesaid.

23. 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 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.

24. 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),

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

Sunder Lal v. State of Rajasthan (2007 (10) SCC 371).

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25. Considering  the  factual  scenario  and  the  manner  of

assault, as alleged by the prosecution, in our considered view,

the appropriate conviction shall be under Section 304 Part-I

IPC. Custodial sentence of 10 years would meet the ends of

justice.       

26. The appeal is allowed to the aforesaid extent.

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

……………………………….…..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi September 26, 2008

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