REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      75          OF 2009 (Arising out of S.L.P (Crl.) No.6403 of 2006)  

Laxminath         ….Appellant  

Versus

State of Chhattisgarh ….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 Chhattisgarh High Court upholding the conviction of the appellant for

the offences   punishable  under  Sections  302 and 324of  the Indian  Penal

Code,  1860 (in  short  the  ‘IPC’).  The accused  persons  were sentenced to

undergo imprisonment for life and for two years respectively for the said

offences.   

3. Prosecution version as unfolded during trial is as follows:

Mahgin Bai (PW-1) lodged the F.I.R (Ex. P-1) in the Police Station

Bhairamgarh on 4.2.1993 at about 12.30 p.m. to the effect that on 3.2.1993

she  was  thrashing  paddy  in  the  house.  At  that  time  her  mother-in-law

Gangadei  (hereinafter  referred  to  as  the  ‘deceased’)  was  preparing  page.

Accused  Laxminath  who  is  husband  of  her  sister-in-law,  came  and

demanded page. Her mother-in-law gave page to the accused.  He thereafter

demanded tobacco, on which her mother-in-law gave him tobacco also and

accused left the house. Thereafter, the accused came with bow & arrow and

shot the arrow on her,  which hit  on her left upper arm and blood started

oozing out of it. Accused also shot an arrow on her mother-in-law, which hit

on chest, blood started oozing out of the injury and accused ran away. Her

uncle-in-law Dhaniram (PW2) witnessed the incident, brought the villagers

and by that time, her mother-in-law was alive. Arrow was stuck in the chest

of  her  mother-in-law.  Villagers  took  her  mother-in-law to  Police  Station

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Bhairamgarh from where they took her to Jagdalpur Hospital,  but on the

way near Mawlibhata Gangadei she succumbed to the injury. Receiving this

report, the police registered the FIR (Ex. P-1). The Investigating Officer left

for the scene of occurrence and took into possession the bow under Ex.P-2.

The Investigating Officer gave a written request  Ex. P-3 to the Assistant

Surgeon,  Primary  Health  Centre,  Bhairamgarh  for  examination  of  the

injuries of Mahgin Bai, on which doctor examined and prepared the injury

report and mentioned that there was one incised wound over left upper arm.

Arrow, weapon of offence was taken into possession under Ex.P-4 and the

petticoat  of  deceased  Gangadei  was  taken into  possession  under  Ex.P-5.

Blood stained soil  and plain soil  was taken into possession under Ex.P-6

from the  place  of  occurrence.  Arrow  in  question  was  examined  by  the

doctor on the request  of Station House Officer Ex.P-7 and doctor opined

that  the  injury  on  the  body of  Mahgin  Bai  could  be  caused  by the said

arrow. Panchnama (Ex.P-10) of the body of Gangadei  was prepared after

giving notice Ex.P-9 to the Panchas. Postmortem on the body of deceased

Gangadei was conducted by Dr. S.K. Naik and he prepared the post mortem

report. There was a dying declaration before PW-6.  

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After completion of investigation, charge sheet was filed against the

accused/appellant  in  the  Court  of  learned  Additional  Chief  Judicial

Magistrate, Jagdalpur, who in turn committed the case to learned Sessions

Judge,  Jagdalpur  from  where  learned  1st  Additional  Sessions  Judge,

Jagdalpur  received  the  case  on  transfer  for  trial.  As  accused  pleaded

innocence, trial was held. Learned trial Judge recorded conviction as noted

above.  

Before the High Court the basic stand was that the evidence was not

sufficient to fasten guilt on the accused.  The oral dying declaration was not

believable.    

It was also submitted that only one arrow was shot from a distance

and, therefore, Section 302 IPC has no application.  The High Court did not

accept the plea and upheld the conviction and the sentence.

4. The stand before the High Court was reiterated before this Court.

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5. Learned counsel for the respondent, on the other hand, supported the

judgment of the trial Court as affirmed by the High Court.      

6. The basic question is whether Section 302 IPC has application.

7. 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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8. 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 caused is done- culpable homicide is murder      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

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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.

9. 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

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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.

10. 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

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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” 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”

means that death will  be the “most probable” result  of the injury, having

regard to the ordinary course of nature.

11. 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

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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.

12. 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.

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13. 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  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.”

14. 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

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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.”

15. 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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16. 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.

17. 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

having been committed by the offender without any excuse for incurring the

risk of causing death or such injury as aforesaid.

18. The above are only broad guidelines and not cast iron imperatives. In

most  cases,  their  observance  will  facilitate  the  task  of  the  Court.  But

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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.

19. 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), and Augustine Saldanha v. State of Karnataka (2003 (10)

SCC 472) and Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).

20. Considering the factual scenario and the facts that one arrow was shot

the offence is covered by Section 304 Part I IPC and not Section 302

IPC. Though it cannot be laid down that whenever one arrow is shot

Section 302 IPC will  not  apply, on the facts of  the present  case it

appears to be so. Therefore, conviction is altered from Section 302

IPC to  Section  304 Part  I  IPC.   Custodial  sentence  of  eight  years

would meet the ends of justice.

21. Appeal is allowed to the aforesaid extent.

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……… ….....................................J.

(Dr. ARIJIT PASAYAT)           

………….……….........................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi, January 13, 2009

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