IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.          OF 2008 (Arising out of SLP (Crl.) No.5134 of 2006)

Kandaswamy ..Appellant

Versus

State of Tamil Nadu ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge  in  this  appeal  is  to  the  judgment  of  the

Division Bench of the Madras High Court upholding conviction

of the appellant under Section 302 of the Indian Penal Code,

1860 (in short the ‘IPC’), as was awarded by learned Sessions

Judge,  Kamarajar,  District  at  Srivilliputtur in Sessions case

no.99 of 1994.  

3. The prosecution case in a nutshell is as follows:-

At  about  8.30  p.m.  on  4.4.1993  the  accused

indiscriminately  cut  the  victim-Alagarsamy  (hereinafter

referred to as ‘deceased’) resulting in his instantaneous death.

PWs  1  and  2  were  examined  as  eye  witnesses  to  the

occurrence.  

Gurvammal  is  the  elder  sister  of  PW  1  and  deceased

Alagarsamy is her husband.  The accused was  known to him.

Guruvammla died leaving behind two children – a girl and a

boy. This made his father (PW 2) to bring Alagarsamy to his

house.   At about 8.30 p.m. on the occurrence  day,  he was

standing opposite to the house of Ramaiah with his son, after

returning from the house of Visalam.  PW 2 was also coming

in the street from the shop and he asked as to whether he had

gone to Visalam’s house and come back. Alagarsamy alighted

from the bus and PW 2 also asked him as to whether he had

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gone  to  Visalam’s  house.  Palpandi  (son  of  accused)  also

alighted from the bus and the accused asked him as to why he

has not brought his mother with him for which he had been

sent.  Palpandi replied to his father (the accused) that unless

the accused goes mother will not come.  Finding fault that he

is  repeating  the  same  answer,  the  accused  beat  his  son.

Alagarsamy asked him as to why he was beating the young

boy for which the accused responded stating that he had no

business  to  intervene  in  his  family  problem and saying so,

removed  the  Aruval  from  his  person  and  cut  Alagarsamy

which injury landed on his left hand.  Alagarsamy fell down

and the accused thereafter indiscriminately cut him.  PWs 1

and 2 rushed towards the scene questioning the act of  the

accused.  Threatening  them  with  dire  consequences,  the

accused made good his escape.  Alagarsamy was lying dead.

PW-1  went  to  the  police  station  and  gave  the  complaint

namely Ex.P-1.  He identified MO 1 as the weapon of offence

and  MOs.  2  to  4  as  the  personal  wearing  apparels  of  the

deceased.          

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4. The  appellant  questioning  the  correctness  of  the

judgment and conviction and sentence as imposed by the Trial

Court under Section 302 IPC and sentenced to undergo for life

imprisonment.     

5. The  only  stand  before  the  High  Court  was  that  the

scenario as projected by the prosecution clearly rules out the

application of Section 302 IPC.  The High Court did not find

any substance in the plea.   

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

appellant  reiterated  the  stand  before  the  High  Court  and

submitted that even if the prosecution version is accepted in

toto, case under Section 302 IPC is not made out.

7. Learned counsel  for the respondent on the other hand

supported the order.   

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8. 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

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.

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9. 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 –

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.

10. 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

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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.

11. 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.

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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

“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.

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12. 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.

13. 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

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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.

14. 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.

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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.”

15. 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

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unless  the  evidence  or  the  circumstances warrant an opposite conclusion.”

16. 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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17. 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.

18. 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

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having been committed by the offender without any excuse for

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

19. 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.

20. 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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21. When  the  factual  scenario  is  considered  in  the

background of the legal principles set out above, the inevitable

conclusion is that the appropriate conviction would be under

Section 304 Part I IPC. Custodial sentence of 10 years would

meet the end of justice.

22. The appeal is allowed with the aforesaid direction.

   ...............................

J. (Dr. ARIJIT PASAYAT)

…….………...............J. (P. SATHASIVAM)

New Delhi, July 17, 2008

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