REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    599         OF 2009 (Arising out of S.L.P. (Crl.) No.7844 of 2007)

Pappu @ Hari Om ..Appellant  

versus

 State of Madhya Pradesh ..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  Madhya  Pradesh  High  Court,  Jabalpur  Bench,  which  affirmed  the

conviction of the appellant for the offences punishable under Sections 302

of the Indian Penal Code, 1860 (in short the ‘IPC’). He was sentenced to

undergo imprisonment for life and to pay a fine of Rs.500/-  with  default

stipulation. Accused Bal Kishan was convicted for offence punishable under

Section 302 read with Section 34 IPC.  The convictions were recorded by

learned Additional  Sessions Judge,  Gohad, Bhind, M.P. in Sessions Case

No.11/95.  The conviction as recorded by the Trial Court was assailed by

two  separate  appeals.  As  accused-appellant  Bal  Kishan  died  during  the

pendency of the appeal, the same stood abated.   

3. Prosecution version in a nutshell is as follows:

On 2.11.1994 at about 9.30 p.m. Ram Babu (PW-1), Jagdish (PW-

12),  Sanjeev  Kumar  (PW-14)  and  Ramesh  (hereinafter  referred  as

‘deceased’ were playing cards near the house of Kishanlal under an electric

pole.  The appellant  Pappu @ Hari Om alongwith co-accused Bal Kishan

came there and asked the persons who were playing cards to permit them to

play with them.  Ramesh objected to it and this gave rise to quarrel between

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Ramesh and the accused Pappu @ Hari Ram & Bal Kishan.  Both Balkishan

and Pappu @ Hari Om went away after abusing Ramesh. After sometime,

they returned back from the lane of Rahim Khan Ki Gali. Papu @ Hari Om

had a 12 bore gun in his hand.  Both accused abused Ramesh and Pappu @

Hari Ram fired gun shots, which caused injuries on the right shoulder of

Ramesh and he fell down.  Bablu (PW-2) and other persons took him to the

hospital on a handcart, where Ramesh was declared dead. The report of this

incident was lodged by Rambabu (PW-1), which is marked as Ex.P-1.  On

the basis of this report, Crime No.261/94 was registered against the accused.

4. Before  the  High  Court  the  basic  stand  was  that  the  independent

witnesses  did  not  support  the  prosecution  version  and  it  was  only  the

evidence of PW-14 who supported the prosecution version.  Additionally, it

was submitted that the case at hand is not one which is covered by Section

302 IPC.  The High Court did not find any substance in the aforesaid plea

and dismissed the appeal.

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5. Learned counsel for the appellant reiterated the plea taken before the

High before  this  Court.   Learned  counsel  for  the  respondent-State

supported the judgment.

6. Coming to the plea relating to acceptability of evidence, PW-10 who

reached  the  spot  after  hearing  the  sound  of  firing  stated  that  when  he

reached the spot he found Ramesh was lying in an injured condition and

was told by the deceased that the accused persons had fired.  Since there

was wound on the chest of the deceased he was taken to the hospital.  In his

evidence Sanjeev Kumar (PW-14) stated that in the night of occurrence at

about 9:30  p.m. which was Diwali  night  he was playing cards  with  four

others,  Balkishan  and  the  present  appellant  came  there.   There  was

exchange  of  hot  words  between  the  accused  with  the  deceased  and  the

appellant fired the shot and caused injuries on the chest of the deceased who

died while being taken to the hospital.  There is no reason to discard the

prosecution version.

7. 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

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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.

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

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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  

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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 7

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.

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

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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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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

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.

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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

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

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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.

16. Thus, according to the rule laid down in  Virsa Singh’s case (supra),

even if  the  intention  of accused was limited to the infliction of a bodily

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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

sometimes the facts are so intertwined and the second and the third stages so

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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),  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).

20. Considering  the  part  of  the  body  where  the  bullet  fired  hit  the

deceased,  in  our considered opinion the appropriate conviction  would be

under Section 304 Part II IPC. Custodial sentence of 8 years would meet the

ends of justice. It  appears from the record that the appellant has suffered

custody of  more  than  that  period.  He shall  be  released  forthwith  unless

required to be custody in any other case.  

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

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……..……....................................J. (D.K. JAIN)

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

(Dr. MUKUNDAKAM SHARMA) New Delhi, March 31, 2009  

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