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CASE NO.: Appeal (crl.)  466 of 2006

PETITIONER: Raj Pal & Ors.

RESPONDENT: The State of Haryana

DATE OF JUDGMENT: 19/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.) No.5228 of 2005)

ARIJIT PASAYAT, J.

       Leave granted. Challenge in this appeal is to the judgment of learned  Single Judge of the Punjab and Haryana High Court  dismissing the appeals filed by the appellants. Learned  Additional Sessions Judge, Gurgaon had convicted the  appellants and one Dharam Singh for offence punishable  under Section 304 Part I read with Section 34 of the Indian  Penal Code, 1860 (in short ’IPC’).  They were also convicted for  offence punishable under Section 325 read with Section 34  IPC as well as Section 323 read with Section 34 IPC.  They  were sentenced to undergo RI for ten years and to pay a fine of  Rs.2,000/-; in default of payment of fine they were directed to  undergo RI for six months for the first named offence.  They  were further sentenced to undergo RI for two years and six  months respectively for other two offences. Fine of Rs.500/-  with default stipulation was imposed.  Two other accused  persons, namely, Vijay Singh and Rattan Singh were released  on probation for a period of two years under Section 4 of the  Probation of Offenders Act, 1958 (in short ’Probation Act’) in  respect of their conviction under Section 323 IPC.  Accused  Vijay Singh died on 22.5.1992.  

Accused Raj Pal, Bir Singh and Chhater Pal question  their conviction and sentences imposed.  

The factual background in a nutshell is as follows:- The appellants are sons of one Bhanwar Singh, and  grandson of one Ariya alias Arimal.  The complainant and  party are their collateral.  Arimal had another son Hira Singh.  Sube Singh (hereinafter referred to as ’deceased’)  and Pirthi  Singh (PW-7) are sons of Hira Singh.  Said Hira Singh had two  more sons, namely, Suraj Bhan and Om Parkash. Sanjay (PW- 6) is son of Pirthi Singh (PW-7).

The betrothal ceremony of Ajit son of deceased Sube  Singh was to take place on 27.2.1990.  On 24.2.1990, Sanjay  (PW-6) went to the house of his uncle, the deceased to help  him in making preparations for the occasion.  An iron gate  fixed in the boundary wall of the house of Sube Singh  (deceased) had got dislocated. They were re-fixing it by  applying cement.  The time was about 10 a.m. Appellants -Raj

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Pal, Bir Singh, Chhatter Pal and Dharam Singh (since  deceased) came there armed with lathis and jellies.  They  desisted Sanjay and deceased from repairing the gate  asserting that they had also a share in the property. Deceased  told them that they had no right over the property and they  had got their property in the partition. The appellants and  Dharam Singh abused deceased. In a fit of anger, Raj Pal gave  a lathi blow on the head of deceased.  Chhatter Pal also gave a  lathi blow on his head. Bir Singh gave a jelli blow on the left  leg of the deceased.  Sanjay (PW-6) intervened to rescue the  deceased.  Bir Singh gave Jelli blow on the right wrist of  Sanjay; Dharam Singh gave a lathi blow on the left hip of   Sanjay.  Thereafter, Rattan Singh and Vijay Singh appellants  also came there armed with jelli and lathi, respectively and  joined the fray.  Vijay Singh  gave a lathi blow on the right side  of the jaw of  Sanjay, Rattan Singh gave jelli blow on his right  thigh. Pirthi Singh (PW-7) father of  Sanjay along with Randhir  Singh cousin of  Sanjay came there on hearing the alarm  raised by Sanjay. Raj Pal  gave lathi blow on the head of  Pirthi  Singh (PW-7); Chhatter Pal gave a lathi blow on his right  shoulder. Bir Singh gave a jelli blow on the head of  Randhir  Singh. Tej Pal and Mahender Singh arrived at the place of  occurrence and rescued the victims from the attack of the  accused persons. The injured persons were taken to the  hospital.  Deceased breathed his last on 25.2.1990 at about  8.40 p.m. at the Safdarjung Hospital.   

After completion of investigation, charge sheet was filed.  As accused persons pleaded innocence and denied the  charges, trial was held.  

Fifteen witnesses were examined.  The statements of the  accused were recorded under Section 313 of the Code of  Criminal Procedure, 1973 (in short ’Cr.P.C.’). As noted above,   the accused persons pleaded innocence.  It was their plea that  the deceased with the help of some PWs was raising  construction on the disputed plot claiming his share in the  plot.  When they objected, the deceased who wanted to grab  their share assaulted the accused persons along with others.  They acted in self defence of person and property.  The Trial  Court on consideration of the evidence on record directed the  conviction and imposed sentence as aforementioned.  Appeal  filed before the High Court was dismissed.  The Trial Court  noted that there was no intention to commit murder and the  accused persons did not repeat the blows on the head of the  deceased. But knowledge can be clearly attributed to them   that by giving blow on the head of the deceased death was only  consequence.  As the accused persons acted in furtherance of  the common intention they were punishable under Section  304 (1) IPC read with Section 34 IPC.  The High Court did not  accept the plea of exercise of right of private defence and also  did not accept the plea that death was not intended.  The  appeal filed by the accused persons was dismissed; so was the  appeal filed by the complainant for alteration of conviction.

In support of the appeal, learned counsel for the  appellants submitted that the Trial Court and the High Court  did not take note of the fact that the accused persons had  suffered serious injuries. In any event, the Trial Court having  noted that there was no intention to cause homicidal death  should not have convicted the accused in terms of Section 304  Part I, IPC.

Learned counsel for the respondent-State supported the  judgments of the trial Court and the High Court.

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The number of injuries is not always a safe criterion for  determining who the aggressor was. It cannot be stated as a  universal rule that whenever the injuries are on the body of  the accused persons, a presumption must necessarily be  raised that the accused persons had caused injuries in  exercise of the right of private defence. The defence has to  further establish that the injuries so caused on the accused  probabilises the version of the right of private defence. Non- explanation of the injuries sustained by the accused at about  the time of occurrence or in the course of altercation is a very  important circumstance. But mere non-explanation of the  injuries by the prosecution may not affect the prosecution case  in all cases. This principle applies to cases where the injuries  sustained by the accused are minor and superficial or where  the evidence is so clear and cogent, so independent and  disinterested, so probable, consistent and creditworthy, that it  far outweighs the effect of the omission on the part of the  prosecution to explain the injuries. [See: Lakshmi Singh v.  State of Bihar (AIR 1976 SC 2263). A plea of right of private  defence cannot be based on surmises and speculation. While  considering whether the right of private defence is available to  an accused, it is not relevant whether he may have a chance to  inflict severe and mortal injury on the aggressor. In order to  find whether the right of private defence is available to an  accused, the entire incident must be examined with care and  viewed in its proper setting. Section 97 deals with the subject- matter of right of private defence. The plea of right comprises  the body or property (i) of the person exercising the right; or (ii)  of any other person; and the right may be exercised in the case  of any offence against the body, and in the case of offences of  theft, robbery, mischief or criminal trespass, and attempts at  such offences in relation to property. Section 99 lays down the  limits of the right of private defence. Sections 96 and 98 give a  right of private defence against certain offences and acts. The  right given under Sections 96 to 98 and 100 to 106 is  controlled by Section 99. To claim a right of private defence  extending to voluntary causing of death, the accused must  show that there were circumstances giving rise to reasonable  grounds for apprehending that either death or grievous hurt  would be caused to him. The burden is on the accused to  show that he had a right of private defence which extended to  causing of death. Sections 100 and 101, IPC define the limit  and extent of right of private defence.  Sections 102 and 105, IPC deal with commencement and  continuance of the right of private defence of body and  property respectively. The right commences, as soon as a  reasonable apprehension of danger to the body arises from an  attempt, or threat, or commit the offence, although the offence  may not have been committed but not until that there is that  reasonable apprehension. The right lasts so long as the  reasonable apprehension of the danger to the body continues.  In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was  observed that as soon as the cause for reasonable  apprehension disappears and the threat has either been  destroyed or has been put to route, there can be no occasion  to exercise the right of private defence.  The above position was highlighted in Rizan and Another  vs. State of Chhattisgarh, through the Chief Secretary, Govt. of  Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and  Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).

Merely because there was a quarrel and some of the   accused persons sustained injuries, that does not confer a  right of private defence extending to the extent of causing  death as in this case. Though such right cannot be weighed in

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golden scales, it has to be established that the accused  persons were under such grave apprehension about the safety  of their life and property that retaliation to the extent done  was absolutely necessary. No evidence much less cogent and  credible was adduced in this regard. The right of private  defence as claimed by the accused persons have been rightly  discarded.   This brings us to the crucial question as to which was  the appropriate provision to be applied. In the scheme of IPC  "culpable homicide" is the 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, 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.  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        Subject to certain exceptions  culpable homicide if the act by         culpable homicide is murder if  the  the death is caused   is                act by which the death is caused  done -                          is done -        

INTENTION          (a) with the intention  of causing             (1) with the intention of causing   death;  or                              death; or

        (b) with the intention                 (2) with the intention of causing               of causing such                                 such bodily injury as the         bodily injury as is                             offender knows to be likely to          likely to cause   death; or                     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                                   (4) with the knowledge that the         knowledge that                                   act is so imminently          the act is likely to                            dangerous that it must in all          cause death.                                     probability cause death or                                                           such bodily injury as is likely

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                                                        to cause death, and commits                                                          such act without any                                          excuse for incurring the                                         risk of causing death                                         or such injury as is mentioned above.  

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.  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  result in miscarriage of justice. The difference between clause  (b) of Section 299 and clause (3) of Section 300 is one of  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  probability 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  Singh 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 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

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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.  The ingredients of clause "thirdly" of Section 300 IPC  were brought out by the illustrious Judge in his terse language  as 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 become locus  classicus. The test laid down by Virsa Singh case (supra) for  the applicability of clause "thirdly" is now ingrained in our

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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.  Thus, according to the rule laid down in Virsa Singh case  (supra) even if the intention of the 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.  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.  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,  that it may not be convenient to give a separate and clear cut  treatment to the matters involved in the second and third  stages.  The position was illuminatingly highlighted by this Court  in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382  and Abdul Waheed Khan alias Waheed and ors. v. State of A.P.  (2002 (7) SCC 175).    Taking the totality of the evidence into consideration and  the special features noticed, it would be appropriate to convict  the accused persons in terms of Section 304 Part II read with  Section 34 IPC instead of Section 304 Part I read with Section  34 IPC.  Custodial sentence of 7 years would meet the ends of  justice.   

The appeal is partly allowed to the extent indicated.