REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 828  OF 2006   

Md. Rafique @ Chachu ...Appellant

Versus

State of  West Bengal ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta  High  Court  which  by  the  impugned  judgment  upheld  the

conviction of the appellant for offence punishable under Section 302 of the

Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  while  setting  aside  the

conviction under Section 398 IPC as done by learned Additional Sessions

Judge, Alipore, in connection with Sessions trial No.6 (1) of 1997.

2. Prosecution case in a nutshell is as follows:

On 1st August, 1996, at about 11.40 in the night the present appellant

along with others came in a white Ambassador car having fake number plate

in  front  of  the  grocery  shop under  the  name and  style  “Prabhat  Stores”

situated at 7/1, Bampass Road, Calcutta-29. The  persons  who  came in  the

Ambassador car were armed with weapons like pistol, nepala etc. and they

entered into the grocery shop and demanded key of the cash box from the

proprietor of the shop namely Gulab Mehata (hereinafter referred to as the

‘deceased’). At that relevant time Gulab Mehata alongwith his sons Mukesh

Mehata was about to take their dinner and the FIR maker Shyam Mehata

just came inside the shop with drinking water. Since Gulab Mehata refused

to  hand  over  the  key  of  the  cash  box  the  present  appellant  shot  at  the

deceased from the front side at his chest and on receiving the injury, he fell

down and thereafter the appellant and other accused persons inflicted cut

injuries  on  the  person  of  the  deceased.  The  miscreants  also  assaulted

Mukesh Mehata with the butt  of the revolver.  Soon after the occurrence,

hearing the alarm of the FIR maker, Shyam Mehata and his brother Mukesh

Mehata, the neighbours of the locality rushed in the shop and Gulab Mehata

and Mukesh Mehata were taken to the nearby hospital where subsequently

Gulab Mehata succumbed to his injuries. One of the neighbours informed

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Tollygunge  Police  Station  immediately  about  the  occurrence  and

Tollygunge Police Station officials soon thereafter arrived at the spot and

started investigation.  On completion of the investigation, police submitted

the  charge  sheet  against  the  present  appellant  along  with  others  under

Section 302 read with Section 34, Section 307 read with Section 34 and

Section 398 read with Section 34 IPC. Since  the  accused  persons

pleaded innocence trial was held.  

Before the High Court the learned counsel for the appellant accepted

that there was no challenge to the fact relating to the occurrence. It was also

conceded  that  from  the  evidence  of  the  FIR  maker  and  also  from  the

evidence of the other witnesses examined during the trial it was established

that the present appellant was physically present inside the shop room. It

was also conceded that there was little scope to deny the prosecution charge

that accused had assaulted the deceased Gulab Mehata with the help of fire

arm.  It was, however, submitted that the circumstances under which firing

has been done were not very clear. Brother of the FIR maker who was also

injured at the time of occurrence did not identify the appellant as the person

who shot at his father and, therefore, there was scope to raise a doubt as to

whether the appellant with the intention of causing death to Gulab Mahata

shot at him.  In other words, it was submitted that a case under Section 302

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is not made out. The High court did not accept this plea, though it accepted

the stand that there was no scope for the conviction under Section 398 IPC.

The stand taken before the High Court was re-iterated by learned counsel

for the appellant.  In support of the appeal, it was submitted that the High

Court has erroneously recorded certain concessions which in fact were not

made. It is submitted that in any event, no offence under Section 302 IPC is

made  out.  It  is  also  submitted  that  there  was  no  identification  of  the

appellant as claimed.  

3. Learned counsel  for the State on the other hand submitted that the

factual scenario clearly established the commission of offence under Section

302 IPC.  

4. So far as the aspect of concession is concerned it is to be noted that

there is no ground taken even in the memorandum of appeal that there was

no concession as recorded by the trial Court.

5. It would be logical to first deal with the plea relating to absence of

concession.  It  is  to  be  noted  that  the  appellant  conceded  certain  aspects

before the High Court. After having done so, it is not open to the appellant

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to turn around or take a plea that no concession was given. This is clearly a

case of sitting on the fence, and is not to be encouraged. If really there was

no concession, the only course open to the appellant was to move the High

Court in line with what has been said in  State of Maharashtra v.  Ramdas

Shrinivas Nayak (1982 (2) SCC 463). In a decision Bhavnagar University v.

Palitana Sugar Mill (P) Ltd. (2003 (2) SCC 111) the view in the said case

was reiterated by observing that statements of fact as to what transpired at

the hearing, recorded in the judgment of the Court, are conclusive of the

facts  so stated and no one can contradict  such statements by affidavit  or

other  evidence.  If  a  party thinks  that  the happenings  in  court  have been

wrongly recorded in a judgment, it is incumbent upon the party, while the

matter is still fresh in the minds of the judges, to call the attention of the

very judges who have made the record. That is the only way to have the

record corrected. If no such step is taken, the matter must necessarily end

there.  It  is  not  open to  the appellant  to contend before this  Court  to  the

contrary. The above position was highlighted in Roop Kumar v. Mohan

Thedani  (2003) 6 SCC 595).

6. 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

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genus and ‘murder’ its specie.  All ‘murders’ are ‘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.

7. 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

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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

(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.

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8. 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.

9. 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

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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” 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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10. 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.

11. 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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12. 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.”

13. 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

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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.”

14. 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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15. 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.

16. 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.

17. 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.

18. 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) and Kandaswamy v.

State rep. by the Inspector of Police  (SLP (Crl.) No.5134/2006 disposed of

on 17.7.2008)

19. Coming  to  the  identification  aspect  the  Judicial  Magistrate  who

conducted the Test  Identification Parade has clarified the position.  It  has

been stated that on 7.10.1996 there could not be identification of the present

appellant  because  the  wrong  person  was  put  in  the  TI  Parade.  The  real

suspect, i.e. the present appellant was not put in TI Parade and this aspect

has been noted in the report relating to TI Parade. Subsequently, TI Parade

was held where the appellant was identified.  

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20. It  is  further  relevant  to  note  that  during  trial  the present  appellant

escaped from jail custody at the time of transporting from Alipore Jail to the

Court.  

21. Coming to the question as to whether the offence committed by the

appellant is covered by Section 302 or Section 304 IPC. It is to be noted that

the accused appellant shot at the deceased from his fire arm as a result of

which he sustained grievous injuries and died in the hospital.  

22. There are two eye witnesses to the occurrence i.e. PWs 12 and 24.

Shyam  Prasad  Mehata  (PW-12)  was  the  informant  while  PW-24  was

another eye witness of the occurrence.  They are sons of the deceased and

had sustained injuries in the incident.  

23. According to PW-12 on the date of occurrence he had carried food for

his father and elder brother as usual around 11.30 p.m. He was talking to his

father and his father asked him to fetch drinking water from the tubewell.

Shortly thereafter while he was standing in front of the counter of the shop

room, one Ambassador car stopped in front of the shop room from which

six persons alighted and two persons remained inside the car. All the six

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persons were armed with various weapons out of which two were armed

with revolvers. They trespassed to the shop room and demanded keys of the

almirahs and when PW-24 stated that he did not have the same, one of them

assaulted his elder brother with the butt of the gun four times, thrice on the

head  and  one  near  the  eye  side  as  a  result  of  which  he  received  blood

injuries. He tried to save his elder brother. At that time the present appellant

shot  at   his father.   To the similar effect  is  the evidence of PW-24. The

doctor PW-22 had stated that death was due to the effect of the gun shot

injury.

24. Above being the position there is no merit in the plea that the offence

is not covered by Section 302 IPC.  

25. The appeal fails and hence dismissed.

……………………………………..J. (Dr. ARIJIT PASAYAT)

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

New Delhi, November 21, 2008

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