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CASE NO.: Appeal (crl.)  689 of 2006

PETITIONER: Rajinder

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 05/06/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 385 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.  

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Punjab and Haryana High  Court dismissing the appeal filed by the appellant, upholding  the conviction recorded and sentenced imposed on the  appellant by learned Additional Sessions Judge, Hissar, for  alleged commission of offences punishable under Section 302  of the Indian Penal Code, 1860 (in short ’IPC’) and Section 27  of the Arms Act 1959, (in short the ’Arms Act’). The appellant  was convicted for the offence punishable under Section 302  IPC and sentenced to undergo RI for life and to pay a fine of  Rs.10,000/- with default stipulation.  He was also convicted in  terms of Section 27 of the Arms Act and was sentenced to  undergo RI for one year and to pay a fine of Rs.500/ with  default stipulation.

Background facts in a nutshell are as follows:

Vishnu Ram (PW-8) followed agricultural pursuits at  village Tharwa.  His elder brother Prithi Raj lived separately  from him.  Subhash (hereinafter referred to as the ’deceased’)  was the son of said Prithi Raj. About 1= years prior to this  occurrence, the police had recovered poppy husk from  appellant - Rajinder. He suspected that deceased had given  secret information to the police and he had a hand in getting  the poppy husk, recovered from him.  Then in the year 1995,  Prithi Raj had taken 10 acres of land on lease from Indal  Kumar, brother of appellant-Rajinder.  Rajinder took ill of it.

On 29.4.1995 at about 7.00 p.m., Vishnu Ram (PW-8)  and deceased were going to irrigate their fields. Appellant met  them on the village phirni.  He declared that deceased had  given information to the police regarding the poppy husk and  Prithi Raj had taken on lease the land of his brother and they  shall have to pay price for the same.  Vishnu Ram (PW-8)  pacified appellant and he left for the village.  Then later at  about 9.15 p.m. Vishnu Ram (PW-8) and deceased were going  through their fields looking after the water course.  Vishnu  Ram (PW-8) had a torch with him.  When they reached on the

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culvert by the side of the village near the road leading to  village Pirthala and deceased was walking ahead of Vishnu  Ram (PW-8), appellant was spotted in the torch light coming  from the village side. He was armed with his gun. He enquired  from Vishnu Ram (PW-8) and deceased as to who they were.   Vishnu Ram disclosed his own identity and identity of  Subhash.  Then appellant raised a ’lalkara’ saying that he will  teach a lesson to them for giving secret information to the  police and for taking the land on lease.  He then fired a shot at  Subhash with his gun, which hit on his right thigh. Subhash  fell down on the ground.  Vishun Ram (PW-9) raised alarm.   Appellant then ran away towards his house by firing shots  from the gun.  Prithi Raj, elder brother of Vishnu Ram (PW-8)  reached the spot on hearing the alarm. A conveyance was  arranged and Vishnu Ram and Prithi Raj took Subhash to  Tohana for treatment.

Dr. H.L. Gupta (PW-9) on 29.4.1995 at 10 a.m. medically  examined the injured.  He found the following injury on his  body:

"1.     A fire arm wound on the right thigh-wound of  entry \026 circular in shape 1< cm x  1< cm  margins were inverted on the postereo-lateral  aspect of the middle of the right thigh.   Margins were greasy and black.         Wound of exit-large extensive would 1= x 4"  on the atereo-medial aspect of right thigh (at  middle).  There were severe bleeding from the  wound and margins were everted.  There was  corresponding tears in the pant. There was corresponding tear in the pant.   Pant Ex.P16 was sealed by the doctor into a  parcel and it was given to the police. "

       The doctor opined that the injury was dangerous to life.   Its duration was fresh and it was caused by a fire-arm.  Ex.PK  is copy of the M.L. report.  Dr. H.L. Gupta had sent ruqas  Ex.PM and PL to the police.   

       Subhash Chander (PW-14) SI/SHO Police Station Tohana  on the night intervening 29/30.4.1995 received two ruqas  Ex.PL and PM from Civil Hospital, Tohana.  He then went to  Civil Hospital Tohana along with other police officials. Ruqas  were accompanied by copy of M.L. report of Subhash.  Vishnu  Ram \026 complainant met PW Subhash Chander SI in the  hospital. His statement Ex.PD was recorded.  He made his  endorsement Ex.PD/2 and got his case registered.  Ex.PD/1 is  the copy of the FIR.

       Subhash succumbed to the injury in the hospital.  His  dead body was lying on the trolly in the gallery of the hospital,  when Subhash Chander SI visited the hospital.  He prepared  Inquest Report Ex.PH on the dead body of Subhash. Inquest  proceedings were attested by Vishnu Ram and Prithi Raj.

       Application Ex.PQ was sent through Om Parkash  Constable for getting the post mortem examination conducted  on the dead body of Subhash.

       On 30.4.1995 at 8.30 a.m., Dr. B.B.Lala (PW-10)  conducted post mortem examination on the dead body of  Subhash, who had expired on 29.4.1995 at 11.50 p.m. in the  hospital.

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       On completion of investigation charge-sheet was filed and  the accused was charged for alleged commission of offence  punishable under Section 302 IPC and Section 27 of the Arms  Act.

       Prosecution examined 14 witnesses.  PW-8 was stated to  be eye-witness. Accused pleaded innocence and false  implication.  Before the High Court the stand of the accused  was that there was delay in sending the first information  report.  The alleged motive for commission of offence is not  established and in any event there was only one injury that  too on the thigh and, therefore, the case is not covered under  Section 302 IPC. As noted above Trial Court found the accused  guilty and convicted and sentenced him.  In the appeal before  the High Court, the plea raised before the Trial Court was  reiterated before the High Court. The prosecution supported  the order of conviction as recorded by the Trial Court.  The  High Court on consideration of rival stands held that the  conviction as recorded and sentenced as awarded do not suffer  any infirmity. The appeal was accordingly dismissed.

       In support of the appeal learned counsel for the appellant  submitted that scenario as depicted clearly rules out  application of Section 302 IPC. At the most even if prosecution  version is accepted in toto the conviction could be under  Section 326 IPC.  It is submitted that accused has already  suffered custody for more than 6 years and 8 months.  

       Learned counsel for the State on the other hand  supported the impugned judgment.

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.

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

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A person commits culpable homicide              Subject to certain  exceptions if the act by which the death is                culpable homicide is  murder  caused is done \026                                     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.     

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

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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 to cause death" 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.

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.

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

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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:

"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 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."

These observations of Vivian Bose, J. have become locus  classicus.  The test laid down by Virsa Singh’s case (supra) for

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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.

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.

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  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  other that it may not be convenient to give a separate  treatment to the matters involved in the second and third  stages. 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 (2002 (7) SCC 175), Augustine  Saldanha v. State of Karnataka (2003 (10) SCC 472) and in   Thangiya v. State of T.N. (2005 (9) SCC 650).

       When the factual background is tested on the principles  set out above, the inevitable conclusion is that the conviction  under Section 302 IPC cannot be maintained and the  conviction has to be in terms of Section 304 Part II IPC.  Custodial sentence of 7 years would meet the ends of justice.   

The appeal is allowed to the aforesaid extent.