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CASE NO.: Appeal (crl.)  1221 of 2007

PETITIONER: Phulia Tudu and Anr

RESPONDENT: The State of Bihar (now Jharkhand)

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1221 OF 2007 (Arising out of SLP (Crl.) No.5396 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Jharkhand High Court upholding  conviction of the appellants for offence punishable under  Section 302 IPC read with Section 34 of the Indian Penal Code,  1860 (in short the ’IPC’).

3.      Background facts according to the prosecution in a  nutshell are as follows:

Bitia Soren (PW-8) is the sister-in-law of Biti Murmu  (hereinafter referred to as ’the deceased’). The first appellant’s  son fell ill and the appellants/accused were under the  impression that since the deceased, Biti Murmu, is a witch,  she has caused a spell on the son of the accused and,  therefore, they were nurturing a grievance against the  deceased. On the date of incident, when the villagers had gone  to the cremation ground to cremate the dead body of a villager,  Jhora Hansda, appellants Phulia Tudu and Malgo Soren,  chased the deceased, Biti Murmu, and she took asylum in the  house of Bitia Soren (PW-8). The appellants entered the house  and caught hold of the deceased, Biti Murmu.  Bitia Soren  (PW-8) at that time, was engaged in dehusking paddy. The first  accused caught the hands of the deceased and pulled her out  and the deceased fell down. The first accused, Phulia Tudu,  assaulted her with lathi and when PW-8 attempted to  intervene, she was threatened with her life.  The other accused  was present there at that time and after the occurrence, they  ran away from the place.  After the return of the villagers  including the husband of PW-8, information was passed on to  them.  Thereafter, fardbeyan, Ext.3, was given by PW-8 at  Raneshwar police station at 2.30 p.m., which was registered  as a crime and Ext.5 is the first information report and  investigation was taken up by Bijendra Narain Singh (PW-9).   PW-9, on taking up the investigation, reached the scene of  occurrence, prepared the inquest report, Ext.5, and sent the  dead body to the hospital with a requisition to the Doctor to  conduct autopsy.  On completion of investigation, charge- sheet was filed.  As accused persons pleaded innocence trial  was held.    

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4.      The trial Court believed the evidence of PW-8 and  recorded conviction under Section 302 read with Section 34  IPC and sentenced each to undergo imprisonment for life.   However, the accused Kisto Kisku was acquitted.  

5.      Matter was carried in appeal before the High Court.  Before the High Court it was submitted that only accusation  was that A2 held the hands of the deceased while A1 inflicted  a lathi blow. It is submitted that lathi blow attributed to A1  could not have caused fatal injuries.  In any event, only one  blow was given and, therefore, Section 302 has no application.   

6.      Learned counsel for the State on the other hand  supported the judgment of the High Court, which as noted  above, dismissed the appeal filed before it.       7.      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’ 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.

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 if the act by which the  death is caused is done - 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

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(b) with the intention of causing  such bodily injury as is likely to  cause death; or (2) with the intention of causing  such bodily injury 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  or 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 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 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

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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.

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.

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

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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 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.

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 \026 being  caused from his imminently dangerous act, approximates to a  practical certainty.  Such knowledge on the part of the

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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 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).

20.     Keeping the aforesaid legal principles in view, the factual  position is to be examined. It cannot be said as a rule of  universal application that whenever one blow is given Section  302 IPC is ruled out. It would depend upon the facts of each  case. The weapon used, size of the weapon, place where the  assault took place, background facts leading to the assault,  part of the body where the blow was given are some of the  factors to be considered. In the instant case admittedly one  blow was given with a small stick, and the place where the  assault took place was dimly lit. Inevitable conclusion is that  the case is covered by Section 304 Part I IPC and not Section  302 IPC.

21.     Therefore, each of the appellants is convicted under  Section 304 Part I read with Section 34 IPC and not Section  302 IPC read with Section 34 IPC. Custodial sentence of ten  years would meet the ends of justice.   

22.     The appeal is allowed to the aforesaid extent.