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CASE NO.: Appeal (crl.)  87 of 2004

PETITIONER: Chacko alias Aniyan Kunju & Ors.                                 

RESPONDENT: State of Kerala                                                  

DATE OF JUDGMENT: 21/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3634/2003)

ARIJIT PASAYAT,J.

       Leave granted.

The four appellants faced trial for allegedly having  caused homicidal death of one Kuttappan (hereinafter  referred to as ’the deceased’) on 16.6.1994. They were tried   for commission of offence punishable under Section 302 read  with Section 34 of Indian Penal Code, 1860 (in short ’the  IPC’). The learned Sessions Judge, Kottayam, found all the  four accused persons guilty and convicted and sentenced them  for the offence punishable under Section 302 read with  Section 34 IPC and sentenced each of them to undergo  imprisonment for life.  Fine of Rs.10,000/- with default  stipulation was also imposed. The accused-appellants  unsuccessfully challenged their conviction and sentence  before the Kerala High Court which dismissed the same by the  impugned judgment.   

       Prosecution version as unfolded during trial is as  follows:

       There was previous enmity between accused persons and  the deceased.  In furtherance of their common intention  because of such enmity, the accused persons chased and  assaulted the deceased on 16.6.1994 at about 11 p.m.  A-2  beat the deceased with an iron rod on his back and when  deceased ran away to save his life, all the accused persons  chased him and near a road side junction, A-4 lighted the  torch carried by him which enabled the other accused persons  to beat the deceased with handles of axe and spade, and iron  rod on different parts of the body.  The injuries were  caused mostly on the hands, legs and ribs.  Only one injury  was inflicted on the head which was the fatal injury.   Though the deceased was taken to the hospital he breathed  his last at about 2.25 a.m. on 17.6.1994.  10 witnesses were  examined to further the prosecution version.  Rajan (PW-2)  was said to be an eyewitness. The information was lodged  with the police by Anil Kumar (PW-1). Soman (PW-3) was the  brother-in-law of the deceased who was informed about the  quarrel between deceased and the accused persons. The  deceased allegedly made a dying declaration before them

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implicating the accused persons. The accused persons pleaded  innocence. They pleaded that the actual occurrence was  suppressed by the prosecution and, in fact, the deceased  attacked them and caused injuries on A-1 and A-2.  Since the  accused persons were attacked, they exercised their right of  private defence and tried to protect themselves and if on  account of that the deceased sustained injuries there was no  offence involved.  Trial Court after analyzing the evidence  on record came to hold that the plea of right of private  defence was not established. A-1 to A-4 were the authors of  the crime. It also did not accept the contention of A-4 that  no overt act was attributed to him and there was no material  to bring him within the field of Section 34 IPC.  The Trial  court held that evidence of PW-2 inspire confidence.  He was  a reliable witness and on his evidence alone the conviction  has to be recorded, though additionally the dying  declaration was there.

       In appeal, the Kerala High Court held that merely  because the accused persons have sustained some injuries,  that cannot ipso facto be a ground for throwing out the  prosecution case. Non-explanation of injuries on the accused  persons in all cases is not a ground for discarding the  prosecution version.  It also did not find any substance in  the plea of the accused-appellants that on the basis of  solitary witness’s evidence conviction cannot be recorded.   Finally, the plea that offence under Section 302 read with  Section 34 IPC was not made out did not find acceptance by  the High Court. It also did not accept the plea that there  was no material for applying Section 34 to A-4. It was  noticed that he was the person who focused the light on the  deceased, facilitating the assaults.   

       In support of the appeal, learned counsel for the  appellant submitted that the Trial Court and the High Court  have lost sight of relevant factors.  The prosecution  version itself indicated that there was quarrel between the  deceased and the accused and since the assaults allegedly  took place in course of a sudden quarrel, that too in  exercise of right of private defence, the accused persons  should not have been found guilty.  It was pointed out that  the prosecution version primarily stands on the solitary  evidence of PW-2. The occurrence, according to the  prosecution took place late in the night and it was  completely dark and necessitated focusing of torch by A-4.   These materials adduced by the prosecution go to show that  no particular injury was intended. In fact, the post-mortem  shows that injuries were on non-vital parts of the body.   The reference to these aspects was highlighted to  substantiate the plea that Section 302 has not attracted.  Alternatively, it is submitted that no offence under Section  34 IPC is made out and so far as accused A-4 is concerned,  as admittedly no assault was done by him and, therefore, he  should not have been convicted.   

       Per contra, learned counsel for the State submitted  that the Trial Court and the High Court have given adequate  reasons for finding the accused persons guilty and  sentencing them.  As they have analysed the factual position  in great detail and have come to the conclusion regarding  guilt of the accused, there is no scope for any  interference.  According to him the case is squarely covered  by Section 302 IPC.   

Coming to the question whether on the basis of a

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solitary evidence conviction can be maintained. A bare  reference of Section 134 of the Indian Evidence Act, 1872  (in short ’the Evidence Act’) would suffice. The provision  clearly states that no particular number of witnesses is  required to establish the case. Conviction can be based on  the testimony of single witness if he is wholly reliable.   Corroboration may be necessary when he is only partially  reliable. If the evidence is unblemished and beyond all  possible criticism and the Court is satisfied that the  witness was speaking the truth then on his evidence alone  conviction can be maintained.  Undisputedly, there were  injuries found on the body of the accused persons on medical  evidence.  That per se cannot be a ground to totally discard  the prosecution version.  This is a factor which has to be  weighed along with other materials to see whether the  prosecution version is reliable, cogent and trustworthy.   When the case of the prosecution is supported by an  eyewitness who is found to be truthful, as well, mere non- explanation of the injuries on the accused persons cannot be  a foundation for discarding the prosecution version.   Additionally, the dying declaration was found to be  acceptable.

       Other plea emphasized related to alleged exercise of  right of private defence. Merely because there was a quarrel  and two accused persons sustained injuries, that does not  confer a right of private defence extending to the extent of  causing death as in this case. Though such right cannot be  weighed in golden scales, it has to be established that the  accused persons were under such grave apprehension about the  safety of their life and property that retaliation to the  extent done was absolutely necessary. No evidence much less  cogent and credible was adduced in this regard. The right of  private defence as claimed by the accused persons have been  rightly discarded.   This brings us to the crucial question as to which was  the appropriate provision to be applied. In the scheme of  IPC culpable homicide is the 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, 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.  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

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between the two offences :          Section 299                               Section 300    A person commits        Subject to certain exceptions  culpable homicide if the act by         culpable homicide is murder if  the  the death is caused   is                act by which the death is caused  done -                          is done -        

INTENTION          (a) with the intention  of causing             (1) with the intention of causing   death;  or                              death; or

        (b) with the intention                 (2) with the intention of causing               of causing such                                 such bodily injury as the         bodily injury as is                             offender knows to be likely to          likely to cause   death; or                     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          (c) with the                                   (4) with the knowledge that the         knowledge that                                   act is so imminently          the act is likely to                            dangerous that it must in all          cause death.                                     probability cause death or                                                           such bodily injury as is likely                                                          to cause death, and commits                                                          such act without any                                          excuse for incurring the                                         risk of causing death                                         or such injury as is mentioned above.  

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 the killing within  the ambit of this clause. This aspect of clause (2) is borne  out by Illustration (b) appended to Section 300.  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,

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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  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 probability as distinguished from a mere possibility. The  words "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.  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 Singh v. State of Kerala (AIR 1966 SC 1874)  is an apt illustration of this point.  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.  The ingredients of clause "thirdly" of Section 300 IPC  were brought out by the illustrious Judge in his terse  language as follows :  "12. 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

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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."  

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 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."  

These observations of Vivian Bose, J. have become locus  classicus. The test laid down by Virsa Singh 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.  Thus, according to the rule laid down in Virsa Singh  case (supra) even if the intention of the 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.  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

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probability, the act having been committed by the offender  without any excuse for incurring the risk of causing death  or such injury as aforesaid.  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, that it may not be convenient to give  a separate and clear cut treatment to the matters involved  in the second and third stages.  The position was illuminatingly highlighted by this  Court in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC  382 and Abdul Waheed Khan alias Waheed and ors. v. State of  A.P. (2002 (7) SCC 175).    

The factual scenario goes to show that late at night in  a stage of complete darkness, the occurrence took place.   According to the prosecution itself for visibility A-4 used  the torch and focused the light on the deceased so that the  other accused persons could assault him.  The distance from  which the light was focused is also not very small. It was  no doubt possible on the part of the accused persons to  place the deceased and assault him; but taking into account  the fact that almost all the injuries were on non-vital  parts and only one was on head, it cannot be definitely said  that any particular injury was intended. As noticed by  Courts below weapons used were not of considerable weight or  length.  They axe or spade was not used but their handles of  small length and weight were used. Taking the totality of  the evidence into consideration and the special features  noticed, it would be appropriate to convict the accused  persons under Section 304 Part I read with Section 34 IPC  instead of Section 302 IPC. A-4 has been rightly roped in  under Section 34. He accompanied the accused persons, and  actively facilitated the assaults to be effectively made on  the accused by focusing the torch.  His conduct prior and  subsequent to the occurrence clearly shows that he shared  the common intention so far as the assaults on the deceased  is concerned.  Custodial sentence of 10 years would meet the  ends of justice. The appeal is partly allowed to the extent  indicated.