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PETITIONER: JAGRUP SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT07/05/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, A.P. (J)

CITATION:  1981 AIR 1552            1981 SCR  (3) 839  1981 SCC  (3) 616        1981 SCALE  (3)1807  CITATOR INFO :  F          1982 SC  55  (8)  R          1982 SC1466  (7)  R          1983 SC 284  (17,18)  F          1983 SC 463  (7)  F          1984 SC 759  (12)

ACT:      Penal Code-Section 300, clause Thirdly-When applicable- Accused hit  the deceased  in the  heat of  moment,  without premeditation  resulting   in  death-Whether   falls   under Exception 4 to section 300 I.P.C.

HEADNOTE:      The appellant and the deceased were collaterals. On the death of  his brother,  the deceased  was looking  after the affairs of  his brother’s  wife  and  children.  Some  while before on  the day  of occurrence, the deceased attended the marriage of his brother’s daughter.      The prosecution  case against the appellant was that he nursed a  grievance against  the deceased that it was he who induced his sister-in-law not to invite him, (the appellant) and his brothers to the marriage and incensed by such insult he  wanted  to  teach  the  deceased  a  lesson.  After  the marriage, armed  with  a  gandhala  (a  common  agricultural implement with  a flat,  rectangular iron  strip with  three sides blunt,  embedded in  a wooden handle which is used for digging  holes)  the  appellant  and  his  brothers  emerged suddenly and  in a joint assault the appellant struck a blow on the  head of  the deceased  with the  blunt side  of  the gandhala.      The Sessions  Judge held  that the appellant struck the blow on  the head with intent to cause such bodily injury as was sufficient  in the  ordinary course  of nature  to cause death  and  that,  therefore,  he  was  guilty  of  culpable homicide amounting  to murder  punishable under  section 302 I.P.C.      Affirming the  conviction and  sentence the  High Court was of  the view  that there  was no  specific and  positive evidence as  to the  motive for  the murder  but that it was more probable  that the  accused had joined the marriage and that "something happened on the spur of the movement", which resulted in  the infliction  of the  injury leading  to  the

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death of the deceased.      In appeal it was contended that the offence amounted to culpable homicide  not amounting  to murder punishable under section 304  part  II  I.P.C.  because  all  that  could  be attributed to the appellant was knowledge that a blow struck on the  head with the blunt side of the gandhala would cause an injury,  which was  likely to cause death but that in any event when  he struck  the blow  he could  not be attributed with intention to cause death.      Allowing the appeal, ^      HELD: The  appellant having  been found  to have struck the deceased with the blunt side of the gandhala in the heat of the moment without premeditation 840 and in a sudden fight all the requirements of Exception 4 to section 300  are met.  Having held that it was more probable that the  appellant had  also attended the marriage but that something had  happened on  the spur of the moment resulting in the  infliction of  the injury  and eventual death of the deceased the High Court erred in applying clause. Thirdly of section 300.      Giving a  solitary blow  on a  vital part  of the  body resulting in  death cannot  always  necessarily  reduce  the offence  to   culpable  homicide  not  amounting  to  murder punishable under  section 304  part II of the Code. If a man deliberately struck  another on the head with a heavy log or an iron  rod or  a lathi  so as  to cause  a fracture of the skull, in  the absence  of any  circumstances negativing the presumption, he  must be  deemed to  have intended  to cause death or such bodily injury as is sufficient to cause death. The intention must be gathered from the kind of weapon used, the part  of the  body hit, the amount of force employed and the circumstances attendant upon death. [843 B-C]      Under clause  Thirdly of  section 300 culpable homicide is murder  if the  act  which  causes  death  is  done  with intention of  causing a  bodily injury  and that  injury  is sufficient in  the ordinary  course of nature to cause death i.e. the  injury found  was one  that  was  intended  to  be inflicted. [844 F-G]      Virsa Singh  v. State  of Punjab  [1958] S.C.R. 1495 at 1503 applied.      Gudur Dusadh  v. State  of Bihar  [1972] 3  S.C.R. 505, Chahat Khan  v. State  of Haryana,  A.I.R. 1972  S.C.  2574, Chamru Budhwa  v. State of Madhya Pradesh, A.I.R. 1954 S. C. 652, Willie  (Williams) Slaney  v. State  Of Madhya  Pradesh [1955] 2 S.C.R. 1140, Harjinder Singh (alias Jinda) v. Delhi Admn. [1968]  2 S.C.R.  246 & Lakshman Kalu Nikalje v. State of Maharashtra [1968] 3 S.C.R. 685 referred to.      In the  instant case the genesis of the quarrel was not known. The  prosecution alleged  that the  appellant and his brothers had  a grouse  against the  deceased and  that they went to  the  marriage  armed  with  weapons  to  teach  the deceased a  lesson. The  defence version, on the other hand, was that they were invited to the marriage. In a controversy of such  a nature  the prosecution  should have examined the sister-in-law of  the deceased who was a material witness to ascertain  the   truth,  failure   to  do   which  made  the prosecution case infirm. [847 B-C]      Secondly when  the appellant  struck a  blow with blunt side of  the gandhala  it could not be said that he intended to cause  such  bodily  injury  as  was  sufficient  in  the ordinary course  of nature  to cause  death. If a man is hit with the  blunt side on the head with sufficient force it is bound to  cause death.  The fact  that the gandhala was used

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with sufficient  force was not by itself sufficient to raise an inference  that the  appellant  intended  to  cause  such bodily injury  as was  sufficient to  cause death.  He could only be  attributed with the knowledge that it was likely to cause an  injury which was likely to cause death. Therefore, the case  does not fall within clause Thirdly of section 300 I.P.C [845 E-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 403 of 1981. 841      From the  judgment and  order dated  the 10th  October, 1980 of  Punjab &  Haryana High  Court in Crl. A. No. 954 of 1979.      Sushil Kumar for the Appellant.      K.C. Bhagat and R.N. Poddar for the Respondents.      The Judgment of the Court was delivered by      SEN, J.  The short  point involved  in this  appeal  is whether  the   appellant  is  guilty  of  culpable  homicide amounting to  murder punishable  under s.  302, Indian Penal Code, or  only of  culpable homicide not amounting to murder punishable  under   s.  304,  Part  II,  Indian  Penal  Code (hereinafter called ’the Code’). It is not disputed that the appellant, Jagrup  Singh, struck  a blow with the blunt side of a gandhala on the head of the deceased, Chanan Singh, who was his uncle, resulting in his death. It appears that after the death  of Joginder  Singh, the deceased Chanan Singh was looking after  the family  of his  brother,  Joginder  Singh consisting of his widow Mst. Dalip Kaur and her children. He had settled  the betrothal and marriage of Mst. Dalip Kaur’s daughter,  Tej  Kaur.  The  prosecution  case  is  that  the appellant Jagrup  Singh and  his  brothers,  Billaur  Singh, Jarmail Singh  and Waryam  Singh, co-accused,  although they were collaterals of Joginder Singh, were not invited by Mst. Dalip Kaur  to the marriage of her daughter Tej Kaur, at the instance of  the deceased  Chanan Singh. On account of this, there was ill-feeling between the parties.      On the fateful evening, i.e. On 20.3.1978, at 5.15 p.m. the marriage  of Tej  Kaur was performed. It is alleged that shortly thereafter,  the appellant Jagrup Singh armed with a gandhala, his  brothers Billaur  Singh armed  with a gandasa and Jarmail Singh and Waryam Singh armed with lathis emerged suddenly and  made a  joint assault  on the  deceased Chanan Singh and  the three  eyewitnesses,  Gurdev  Singh,  PW  10, Sukhdev Singh,  PW 11  and Makhan Singh, PW 12. The deceased along with  the three  eye-witnesses was rushed to the Rural Dispensary, Rori  where they  were examined  at 6 p.m by Dr. Bishnoi, PW  3, who  found that the deceased had a lacerated wound 9cm  x 1/2cm bone deep on the right parietal region, 9 cm away  from the  tip of right pinna; margins of wound were red, irregular  and were  bleeding on  touch;  direction  of wound was  anterior-posterior. The deceased was in a serious condition and,  therefore, he  was referred by Dr Bishnoi to the Civil  Hospital, Sirsa,  where he died on the morning of 21.3.1978 at 2.10 a.m. 842      Dr.  Karan   Singh,  Senior   Medical  officer,   Civil Hospital, Sirsa,  PW 1, performed an atopsy on the dead body of the deceased. He found the following external injuries:           A stitched  contused wound  9 1/2 cm long situated      on right  side of the head, 9 cm above the top of pinna      and 9  cm above  the eye  brow. Skull  deep,  direction

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    anterio-posterior. On dissection, he found the following internal injury:           A fracture  line running  starting from  the lower      and the  anterior part  of parietal  bone injuring  the      middle meningeal  artery near  its  entrance  into  the      skull and  traversing medially across the base of right      middle  fossa,  crossing  the  mid-line  and  extending      slightly to  the left of mid-line. There was a dark red      haemotoma (extra-dural)  3" 2x3" overlying the parietal      and temporal  lobes of brain on right side and the area      was compressed. In his  opinion, the  death  of  the  deceased  was  due  to cerebral compression  as a  result of  the head injury which was sufficient  in the  ordinary course  of nature  to cause death.      He High  Court of Punjab and Haryana, agreeing with the Additional Sessions  Judge, Sirsa,  held that  the appellant struck a  blow on  the head  of the  deceased with the blunt side of  the gandhala with the intent of causing such bodily injury which was sufficient in the ordinary course of nature to cause  death and  that being so, the appellant was guilty of culpable homicide amounting to murder punishable under s. 302 of the Code.      In assailing  the conviction,  learned counsel  for the appellant  contends  that  the  appellant  having  struck  a solitary blow  on the  head of  the deceased  with the blunt side of  the gandhala,  can be attributed with the knowledge that it  would cause  an injury  which was  likely to  cause death and  not with  any intention to cause the death of the deceased. The  offence committed by the appellant, therefore amounted to  culpable  homicide  not  amounting  to  murder, punishable under  s. 304,  Part Ir  of the  Code. He further contends, in  the alternative,  that there could be no doubt that the  appellant acted  in the heat of the moment when he bit the  deceased and is, therefore, entitled to the benefit of Exception  of s.  300 of  the Code.  On the  other  hand. Learned counsel for the State contends that the matter 843 squarely falls  within Clause Thirdly of s. 300 of the Code. He A  submits that  merely because  the appellant rendered a solitary blow  with the  blunt side  of the  gandhala on the head would  not necessarily  imply that the offence amounted to culpable  homicide not  amounting  to  murder  punishable under s. 304, Part II of the Code.      There is  no justification  for the  assertion that the giving of  a solitary  blow on  a vital  part  of  the  body resulting the  death  must  always  necessarily  reduce  the offence  to   culpable  homicide  not  amounting  to  murder punishable under  s. 304,  Part II  of the  Code. If  a  man deliberately strikes another on the head with a heavy log of wood or  an iron  ’rod or  even a  lathi so  as to  cause  a fracture of  the skull,  he must,  in  the  absence  of  any circumstances negativing  a the  presumption, be  deemed  to have intended  to cause  the death  of the  victim  or  such bodily injury  as is  sufficient to  cause death.  The whole thing depends  upon the  intention to  cause death,  and the case may  be covered  by either  Clause  Firstly  or  Clause Thirdly. The  nature of  intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed  and the  circumstances  attendant  upon  the death.      The ingredients of Clause Thirdly of s. 300 of the Code were brought  out by Vivian Bose, J. in Virsa Singh v. State of Punjab in his terse language:           "To put it shortly, the prosecution must prove the

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    following facts before it can bring a case under s. 300      "3rdly".           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, 844           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". The learned  Judge explained  the third  ingredient  in  the following words:           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 in      jury 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 in 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  s.  300  of  the  Code,  culpable homicide is  murder if  both the  following  conditions  are satisfied: (a)  that the act which causes death 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.      The  decision   in  Virsa   Singh’s  case  (supra)  has throughout  been   followed  as   laying  down  the  guiding principles. The decisions 845 are too  numerous and  we may notice only two of them: Gudur Dusadh v.  State of  Bihar  and  Chahat  Khan  v.  State  of Haryana.  In   Gudur  Dusadh’s  case,  the  day  before  the occurrence, the  accused had killed a goat and on the advice of the  deceased, the  complainant lodged  a report.  On the next morning,  while the  deceased was  returning  from  his

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fields along  with his  son,  they  were  assaulted  by  the accused  persons   who  had   been  hiding   on  the  route. Thereafter, the accused set fire to the hut of the deceased. On these  facts it  was held that the act of the accused who had waylaid  the deceased  was  a  pre-meditated  act,  and, therefore, the accused had the necessary intention to commit murder. In Chahat Khan’s case also, the deceased was waylaid by the  accused who  were armed  with lathis.  That case  is destructive of  the theory  that a solitary blow on the head reduces the  offence to  culpable homicide  not amounting to murder punishable  under s.  304, Part II. From the evidence it emerged that the accused had both gun and a lathi, and he made full  use of  the lathi  by using  both the  hands  and struck a  blow on  the head  of the deceased with sufficient force. The  solitary blow  with the  lethi was sufficient in the ordinary  course of nature to cause his death, and there was no  occasion for  using the gun which was hanging on his shoulders. Both  these cases  fell within  Clause Thirdly as there was  clear intention to cause such bodily injury which in the  ordinary course  of nature  was sufficient  to cause death.      Looking at  the totality  of the evidence, it would not be  possible  to  come  to  the  conclusion  that  when  the appellant struck  the deceased  with the  blunt side  of the gandhala, he  intended to  cause such  bodily injury  as was sufficient in  the ordinary course of nature to cause death. A gandhala  is a common agricultural implement consisting of a flat,  rectangular iron  strip, three  sides of  which are blunt, embedded  in a  wooden handle. The length of the iron strip is  in continuation  of the  wooden handle and the end portion is sharp, which is used to dig holes in the earth to set up  fencing on embankments in the field. If a man is hit with the blunt side on the head with sufficient force, it is bound to  cause, as  here, death. There can be no doubt that it was  used with  certain amount of force because there was cerebral compression.  But that  by itself is not sufficient to raise  an inference  that the appellant intended to cause such bodily  injury as  was sufficient  to cause  death.  He could only  be attributed  with the  knowledge that  it  was likely to cause an injury which was 846 likely to  cause the  death. The matter, therefore, does not fall within Clause Thirdly of s. 300 of the Code.      In Chamru Budhwa v. State of Madhya Pradesh in somewhat similar circumstances,  where there  was exchange  of abuses between the two parties both of whom were armed with lathis, they came  to blows  and in  the course  of the  fight  that ensued, the  accused struck  a lathi blow on the head of the deceased which  caused a  fracture of the skull resulting in the death.  In view  of the  fact the accused had given only one blow  in the  heat of  the moment,  it was held that all that can  be said  was that  he had  given the blow with the knowledge that  it was likely to cause death and, therefore, the offence  fell under  s. 304,  Part II  of the  Code.  In Willie (Williams)  Slaney v.  State of  Madhya Pradesh there was, as  here, a  sudden quarrel  leading to  an exchange of abuses and  in the heat of the moment a solitary blow with a hockey-stick had been given on the head. The court held that the offence  amounted to  culpable homicide not amounting to murder punishable under s. 304, Part II.      At this  stage, we  think, it desirable to refer to two other decisions  in Harjinder  Singh (alias  Jinda) v. Delhi Admn. and  Lakshman Kalu  Nikalje v.  State of  Maharashtra, where the  court, relying  upon the principles enunciated by Vivian Bose,  J. in Virsa Singh’s case (supra), excluded the

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application of  Clause Thirdly, because the third ingredient laid down, viz. the intention to cause the particular injury which was likely to cause death, was not present.      In Harjinder  Singh’s case  (supra) there  was a sudden commotion when  the accused took out a knife and stabbed the deceased who  intervened in  a fight.  At  this  stage,  the deceased was in a crouching position presumably to intervene and  separate  the  two  persons  fighting.  It  could  not, therefore, be  said with  any definiteness  that the accused aimed a blow at a particular part of the thigh that it would cut the  femoral artery  which would  result in the death of the deceased.  It was,  therefore,  not  possible  to  apply Clause Thirdly  of s.  300  of  the  Code.  In  Laxman  Kalu Nikalje’s case  (supra) there  was a  sudden quarrel and the accused lost his temper and whipped out a knife and gave one blow. Although it was given on the chest, 847 it was not on a vital part of the chest and but for the fact that the  knife cut  the auxiliary  artery, death  might not have ensued.      In the present case, there is no doubt that there was a sudden quarrel and the appellant assaulted the deceased with the blunt  side of  the gandhala  on the head in the heat of the moment.  What actually  was the  immediate cause for the assault by  the appellant  on the  deceased at  the marriage ceremony of  Tej Kaur,  is not  clear. The  genesis  of  the quarrel resulting  in the head injury to the deceased is not known. The  prosecution came  with a  positive case that the appellant, together  with his  three brothers,  who had  not been invited  to the marriage of Tej Kaur by Mst. Dalip Kaur at the instigation of deceased Chanan Singh, came armed with different weapons  to teach  the deceased  a lesson. But the prosecution has  failed to  examine Mst.  Dalip Kaur and the defence version  is that  the appellant and his brothers had been invited to the marriage of Tej Kaur by Mst. Dalip Kaur.      In view  of these  infirmities in the prosecution case, the High Court was constrained to observe:           In  the  absence  of  any  specific  and  positive      evidence  whether   oral  or  documentary,  it  is  not      possible to arrive at any positive conclusion that this      circumstance furnished  any motive  for the  accused to      attack  Chanan   Singh  (deceased)   and  three   other      prosecution witnesses.  After a  careful perusal of the      entire prosecution  evidence, it  appears more probable      that the accused had also joined in the marriage as the      collaterals, but  something happened on the spur of the      moment which  resulted in  the infliction  of injury by      Jagrup Singh  on  the  person  of  Chanan  Singh  which      resulted into  his  death.  In  the  first  information      report, it  had not been disclosed, as was subsequently      made out  at the  trial, that the accused had come from      the  house   of  Jarmail  Singh,  accused,  armed  with      weapons.                                          (emphasis supplied) In our judgment, the High Court having held that it was more probable that  the appellant  Jagrup Singh had also attended the marriage  as the  collateral, but  something happened on the spur  of the  moment which resulted in the infliction of the injury  by Jagrup  Singh on  the person  of the deceased Chanan Singh  which resulted  in his death, manifestly erred in applying Clause Thirdly of s. 300 848 of the  Code. On  the finding  that the  appellant  when  he struck the  deceased with  the blunt side of the gandhala in the heat  of the  moment, without  pre-meditation and  in  a

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sudden fight, the case was covered by Exception 4 to s. 300. It is  not suggested  that the  appellant  had  taken  undue advantage of  the situation  or had  acted  in  a  cruel  or unusual manner.  Thus, all  the requirements  of Exception 4 are clearly  met. That  being  so,  the  conviction  of  the appellant Jagrup  Singh, under  s. 302 of the Code cannot be sustained.      The result,  therefore, is  that the  conviction of the appellant under  s. 302 is altered to one under s. 304, Part II of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of seven years. P.B.R                                     Appeal allowed. 849