http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  107 of 2007

PETITIONER: Shri Harendra Nath Borah

RESPONDENT: State of Assam

DATE OF JUDGMENT: 24/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (CRL.) No.5338 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the judgment of the  Guwahati High Court upholding appellant’s conviction under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  and sentence of imprisonment for life as awarded by the  learned Sessions Judge, Dhemaji.   Accusations which led to the trial of the appellant are  essentially as follows:

One Premlal Verma lodged a written complaint to the  Superintendent of Police, East Siang, Arunachal Pradesh on  29.9.2000 alleging that on 26.9.2000 one Fekan Das  (hereinafter referred to as the ’deceased’) was driving a Truck  No.AS-25/641. At about 11.00 p.m. when the truck reached  Ruksing Gate, the police personnel of Jonai Police Station  came there in a three wheeler and assaulted the deceased.   The deceased became senseless and the police left him on the  road and returned to the police station.  It was further alleged  that the deceased was brought to the Pasighat General  Hospital for treatment. On 28.9.2000, he was referred to  Dibugarh for treatment and on 29.9.2000 on way to the  hospital his condition became serious and he died while being  brought to Pasighat.

The aforesaid information was registered. The  investigation was undertaken and charge sheet was placed.   The accused was absconding and, therefore, no test  identification parade could be held. On conclusion of  investigation,  the Investigating Officer submitted the charge  sheet indicating commission of offence punishable under  Section 302 IPC. Charge was framed after he was arrested.  In  order to substantiate its accusations 16 witnesses were  examined. The accused pleaded innocence. On analysis of the  evidence tendered,  the Trial Court found the accused guilty  and convicted and sentenced as aforesaid.  An appeal was  preferred before the High Court.  The main stand of the  accused-appellant was that the evidence of the eye witnesses  cannot be relied upon as there was delay in lodging the FIR,  and conviction was vitiated. Further no sanction was obtained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

as required under Section 197 of the Code of Criminal  Procedure, 1973 (in short the ’Code’).  The stand of the  respondent-State on the other hand was that the evidence of  PWs. 5, 6 and 7 had clearly established the accusations.  It  was submitted that the deceased was assaulted without any  fault on his part.  Further, it was pointed out that since the  appellant, a police personnel  was involved there was effort on  the part of the other officials not to accept the information  given and ultimately the grievance was made before the  Superintendent of Police.  The High Court found that the  evidence of the three witnesses who were stated to be eye  witnesses left no manner of doubt that the accused was guilty.  Therefore, the appeal was dismissed.

Learned counsel for the accused submitted that even if  the accusations are accepted in toto, the offence under   Section 302 IPC is not made out.   

Learned counsel for the respondent on the other hand  supported the judgment and the conviction and sentence as  passed by the Trial Court and affirmed by the High Court.

The crucial question is 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 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.

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.

               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 \026                                     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

(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 ****

(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.     

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, 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 to cause death" 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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" 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 and  Anr. 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:

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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."

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 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’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.

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.

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 \026 being

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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.

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.

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 (2002 (7) SCC 175), Augustine  Saldanha v. State of Karnataka (2003 (10) SCC 472) and in   Thangiya v. State of T.N. (2005 (9) SCC 650).

When the factual background of the case is analysed on  the touchstone of principles set out above, the inevitable  conclusion is that the case at hand is not covered under  Section 302 IPC and on the other hand the case is covered  under Section 304 Part I IPC.  The conviction is accordingly  altered.  Custodial sentence of 10 years would meet the ends  of justice.

The appeal is allowed to the aforesaid extent.