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CASE NO.: Appeal (crl.)  974 of 2006

PETITIONER: Laxman

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 18/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1471 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Madhya Pradesh High  Court, Indore Bench. The accused are described as per their  number during trial.  Appellant Laxman (A1) was found guilty  of the offence punishable under Section 302 of the Indian  Penal Code, 1860 (in short the ’IPC’). Three others i.e.  Chhattariya (A3), Richhu (A5) and Nawal Singh (A8) were  convicted under Section 324 IPC.  The High Court allowed the  appeal so far as it relates to Bhoomaliya (A2), Kishan (A4),  Bathilaya (A6), Banshiya (A7) and Rai Singh (A9) and acquitted  them of all charges. Appellant Laxman was acquitted of the  charge under Section 148 and 324 read with Section 149 IPC.   Three accused who were convicted under Section 324 IPC,  were acquitted of the charges under Sections 148, 302 read  with Section 149 IPC.

Initially 9 persons had faced trial for alleged commission  of offences punishable under Sections 148, 302 and 324 read  with Section 149 IPC.  One of the accused who faced trial  along with 9 others had died during the trial.

Prosecution version in a nutshell is as follows:

On 12.3.1993 there was the festival of Rangpanchami.  Chastar (hereinafter referred to as ’deceased’) and Gulab Singh  (PW9) had gone Gadaghat to take the food grain, and were  coming back to the house after taking the food grains from the  bullock cart. On the way the accused Laxman (A1),  Chatarsingh (A3), Bashiy (A7), Raisingh (A9), Navalsingh (A8),  Reechoo (A5), Nakoo, Bathalya (A6) Bhomalya (A2) and Kishan  (A4) stopped Chastar and Gulab in the field of Remsingh  situated on the backside of the house of Navadiya at about 11  A.M. Gulab ran away from the spot and told the villagers that  the accused persons have stopped the deceased and were   assaulting him. On hearing this the complainant Anar Singh  (PW-1), Kal Singh (PW-10),  Resala (PW-12) and other persons  of the village went running to the place of incident. The  accused persons started shooting arrows and pelting stones.  The accused Chatariya (A-3) shot an arrow which hit on the

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right shoulder of the complainant. The accused Laxman (A-1)  shot an arrow which hit the deceased and on sustaining the  injuries the deceased fell down and died immediately.  The  accused Reechoo (A-5) shot an arrow which hit Kal Singh (P- 10) in his back and the accused Naval Singh (A-8) also shot an  arrow  which hit Resala (PW-12). When deceased fell down, the  accused run away. The complainant was having old enmity  with the accused persons, due to this reason the accused  persons committed murder of the deceased who was nephew  of the complainant, and he also sustained injuries. The  complainant Anar Singh reported the incident on the same  day in writing at the police station, which is Ext.P-1. Medical  examination of the injured persons was done. After   investigation the charge sheet was filed in the court of the  Judicial Magistrate, First Class, Khargon under Sections 147,  148, 149, 302 and 324 I.P.C., which was registered as  Criminal Case No.380/93. Case was transferred to the  Sessions Court. After transfer of the case, the case was taken  for trial.  

In order to establish its accusations prosecution mainly  rested on the evidence of PWs 1, 9, 10 and 12 who were stated  to be eye witnesses. Placing reliance on the evidence of eye  witnesses, the Trial Court found the accused persons guilty  and convicted and sentenced as noted supra.  The appeal filed  by the nine accused persons was disposed of in the manner  noted supra. The judgment is challenged by Laxman (A-1)  only.  

In support of the appeal, learned counsel for the  appellant submitted that the occurrence took place in the  course of sudden quarrel, and therefore conviction as done is  not correct and in any event Section 302 IPC has no  application to the facts of the present case.   

Learned counsel for the State submitted that the Trial  Court and the High Court have analysed the evidence in great  detail and have rightly held that Section 302 IPC has  application.   

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’ is 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 greatest 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  punishment 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

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and application of these provisions seems to be to keep in  focus the keywords used in the various clauses of Sections  299 and 300 IPC. The following comparative table will be  helpful in appreciating the points distinction between the two  offences.  

Section 299 Section 300 A person commits culpable  homicide if the act by which  the death is caused is done \026 Subject to certain exceptions  culpable homicide is murder  if  the act by which the death is  caused is done - INTENTION   (a) with the intention of  causing death; or        (1) with the intention of causing  death; or (b) with the intention of  causing such bodily injury as  is likely to cause death; or           (2) with the intention of causing  such bodily injuries 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 is likely to cause death.                                                                                       

(4) with the knowledge that 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 IPC corresponds with Clauses  (2) and (3) of Section 300 IPC. 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

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

Clause (b) of Section 299 IPC does not postulate any  such knowledge on the part of the offender. Instances of cases  of falling under Clause (2) of Section 300 IPC 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 IPC, instead of the words ’likely to  cause death’ occurring in the corresponding Clause (b) of  Section 299 IPC, 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 IPC and Clause (3) of Section 300 IPC 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 of the lowest degree. The  word ’likely’ in Clause (b) of Section 299 IPC 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 acts before it can bring a case under  Section 300 IPC, "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 proceeded further, and fourthly it  must be proved that the injury of the type just described made  up 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 ingredient of clause "Thirdly" of Section 300 IPC were  brought out by the illustrious Judge in his terse language as

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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 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 come 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

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particular bodily injury, which in the ordinary course of  nature, was sufficient to cause death, viz., that the injury  found to be present 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 IPC clearly brings out this point.

Clause (c) and Clause (4) of Section 300 IPC 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 IPC 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  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 highlighted by this Court in State of  Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4)  SCC 382) and recently in Abdul Waheed Khan @ Waheed and  Ors. v. State of Andhra Pradesh (2002 (7) SCC 175) and in  Thangaiya v State of Tamil Nadu (2005 (9) SCC 650).

The fact situation shows that arrows were being shot  from a distance, not with any accuracy. One of such arrows  hit the deceased. As established by the evidence of eye- witnesses the appellant had shot that arrow. There was no  sudden quarrel as stated by the appellant. The evidence shows  otherwise.  

Considering the background facts as noted above,  appellant has to be convicted in terms of Section 304 Part I  IPC and not in Section 302 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.