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CASE NO.: Appeal (crl.)  123 of 2007

PETITIONER: Sellappan

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 31/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.5326 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Madras High Court  confirming the conviction of the appellant for commission of  offence punishable under Section 302 of the Indian Penal  Code, 1860 (in short the ’IPC’) and affirming the sentence of  imprisonment of life as imposed.  It is to be noted that the  appellant was tried with one another whose conviction and the  sentence imposed by the trial Court for offence punishable  under Section 324 read with Section 511 IPC was set aside.   Similar was the case for the appellant.

Background facts as projected by the prosecution in a  nutshell are as follows:

Rathinavelu (PW-1) is the son, Saradha (PW-2) is the  wife, Kanakraj (PW-3) is the younger brother and Selvi (PW-4)  is the second wife of Periasamy (hereinafter referred to as the  ’deceased’). Appellant-Sellappan is the father and acquitted  accused Selvaraj is the brother of Selvi (PW-4).  All of them  were residing at Nallarayanapatti.

The deceased without the knowledge of the appellant and  Selvaraj married PW-4 on account of which, they were angry  towards the deceased.

About 1= years prior to the incident, appellant abused  the grandmother of PW-1 and he was questioned by the  grandfather of PW-1.  Appellant beat the grandmother of PW-1  and the deceased went to the police station and gave a  complaint against him. A panchayat was convened, where the  appellant was advised that he should not abuse the family  members of the deceased.  

About a year prior to the date of incident, the appellant  went to the house of the deceased and wanted his daughter  PW-4 to return the jewels which was given to her.  She refused  to part with the jewels on account of which also the appellant  was nurturing a grievance against the deceased.

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At about 5.45 p.m. on 3.4.1994, Saradha (PW-2), the  mother of Rathinavelu (PW-1), who is the wife of the deceased  Periasamy, was collecting leaves for silk worms for the purpose  of feeding them.  Kanakaraj (PW-3) was inside the house.  The  deceased left the house to bring agricultural labourers and,  while he was on his way, the appellant armed with a stick,  Selvaraj armed with an aruval, appeared before him.  On  seeing them the deceased became panicky and shouted saying  that they are about to beat him.  Selvaraj threw the aruval,  which he had in his hand at the deceased and the deceased  side stepped.  At that time, the appellant with the stick, which  he had in his hand, beat the deceased on the head twice.  The  deceased fell down.  The appellant leaving the stick, ran away  from the place followed by Selvaraj, who took away the aruval  with him.  The occurrence was witnessed by PWs. 1 to 3.

Kanakaraj (PW-3) went and brought a taxi at about 7.45  p.m.  The injured Periasamy was placed in the vehicle and  taken to the Government Mohan Kumaramangalam Hospital,  where he was produced before Dr. Chellammalpuri (PW-9), the  Casualty Medical Officer at 9.00 p.m.  PW-9 on examination of  the injured Periasamy found the following injuries.

"1. A contusion about 4" in diameter at the occipital  region.           2.     A contusion about 1" diameter at the back of right  scapular".

PW-9 issued Ex.P5, a copy of the accident register and  Ex.P6, the wound certificate.  PW-9 also sent Ex.P4 intimation  to the Outpost Police Station, which was received by Head  Constable (PW-11) attached to the Outpost Police Station, Dr.  Singaram (PW-10) treated the deceased and issued Ex.P7  wound certificate.

On receipt of Ex.P4 sent by PW-9, Head Constable (PW- 11) attached to the Outpost Police Station went to the ward,  where the injured was admitted and finding him unconscious,  questioned PW-1, who gave a statement.  The said statement  was reduced into writing and the same stands marked as  Ex.P1.  PW-11 then returned to the Outpost Police Station and  by wireless informed Attayampati Police Station, within whose  jurisdiction the occurrence took place.

The Head Constable (PW-15) attached to Attayampatti  Police Station, on getting information over wireless, proceeded  to the Outpost Police Station and received Ex.P1 from PW-11.   He then returned to the Police Station at Attayampatti with  Ex.P1 and registered a case in Crime No.304 of 1994 against  the appellant and Selvaraj under Sections 341 and 326 IPC by  preparing printed FIR. Ex.P14 is the copy of the printed FIR.   PW-15 then took up investigation in the crime.

PW-15 on taking up investigation, reached the scene of  occurrence at 4.00 p.m. on 4.4.1994 and prepared Ex.P2,  Observation Mahazar and Ex.P-15, rough sketch. At about  6.15 p.m., he seized MO 1, which was lying at the scene under  the mahazar Ex.P-3, attested by witnesses.  He examined PW- 2, PW-3, PW-4 and others and recorded their statements.

In the meantime, the injured Periasamy was removed  from the Government Mohan Kumaramangalam Hospital and  was admitted as a patient in a private Nursing Home run by  Dr. Chandrasekaran (PW-14) on 4.4.1994.  An operation was

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performed in the hospital and in spite of the treatment given,  Periasamy breathed his last at about 7.45 p.m. on 9.4.1994.  The doctor sent Ex.P11 intimation to Kondalampatty Police  Station, which in turn was forwarded to Attayampatty Police  Station.  Ex.P12 is the copy of the accident register issued by  PW-14 and Ex.P13 is the case sheet maintained in the  hospital.

On receipt of the death intimation, Ex.P-11, the crime  was altered to one under Section 302 IPC and Ex.P-16 is the  express report in the altered crime.  Thereafter, investigation  was taken up by PW-16, Inspector of Police of Kondalampatty  circle.        

PW-16 on taking up investigation on 9.4.1994 reached  SKS Hospital at 11 p.m. and conducted inquest between 6.00  a.m. and 10.00 a.m. on 10.4.1994 over the dead body of  Periasamy in the presence of panchayatdars by preparing  inquest report, Ex.P-17.  At the time of inquest, PWs 2 to 4  and others were questioned and their statements were  recorded.  After inquest, PW-16 gave a requisition to the  Doctor for conducting autopsy.

On receipt of the requisition, Ex.P-8, PW-13 Assistant  Surgeon attached to the Government Mohan  Kumaramangalam Hospital conducted autopsy over the body  of Periasamy and found the following injuries:-

"1.     Abrasions are present o the following areas: (a)     On the back of upper third of right forearm 1 cm x  0.5 cm.  (b)    On the posterior aspect of right side parietal area 3  cm x 2 cm. (c)     On the left side occipital area 4 cm x 2 cm. (d)     On the anterior aspect right parietal area 1 cm x 0.5  cm. (e)     A linear abrasion on the left side cheek 1 cm x 0.2  cm. All are dark brown in colour.

A curved sutured wound 14 cm in length on the  right front to parieto temporal region of the scalp with the  convexity facing upwards.  The front end of the wound  begins 2 cms above the inner end of the right eyebrow.  On removal of the sutures, partially healed, 0.5 cm in  breadth edges of the wound are clean cut, through which  the gel foam is coming out."

PW-13 issued Ex.P-10, Postmortem certificate with  his opinion that death was on account of cranio-cerebral  injuries.  

PW-16, continuing with his investigation, questioned  witnesses and recorded their statements.  He searched for the  appellants, who were absconding.  On 11.4.1994, he examined  the witnesses including the Doctors.  On 13.4.1994, PW-16  was informed that the appellant and Selvaraj have  surrendered themselves before the Judicial Magistrate,  Omalur.  After his transfer, investigation in the crime was  taken up by PW-17, who after examining the Doctors and  other witnesses filed the final report against the appellant on  19.10.1994.

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The appellant was questioned under Section 313 of the  Code of Criminal Procedure, 1973 (in short ’Cr.P.C.’) on the  incriminating circumstances appearing against him.  He  denied all the incriminating circumstances and stated that on  account of enmity, this case has been foisted.

The trial Court found the two accused persons before it  guilty.  However, in appeal Selvaraj was acquitted, but as  noted above, appellant’s appeal was dismissed.     

In support of the appeal learned counsel for the appellant  submitted that the evidence is not credible and cogent and in  any event offence under Section 302 IPC is not made out.  It is  submitted further that with proper treatment life of the  deceased could have been saved.  Learned counsel for the  State submitted that no case for interference is made out.

PW-1, the son, PW-2, the wife and PW-3, the younger  brother of the deceased were examined to establish that the  appellant inflicted the fatal injuries.  It is the evidence of the  witnesses that on account of the deceased marrying PW-4,  who is the daughter of the appellant, as second wife, the  appellant, the father and Selvaraj, the brother of PW-4 were  not happy with the deceased and about 18 months prior to the  date of incident, the appellant quarreled with the grand  parents of PW-1 and during the quarrel, beat the grandmother  of PW-1, for which a complaint was given at Police Station.   The evidence further show that a panchayat was convened and  the appellant was advised not to abuse the family members of  the deceased, but the appellant did not heed to the advice.   The evidence further shows that some time prior to the date of  incident, the appellant wanted PW-4, her daughter to return  the jewels, which he gave previously and when she refused, a  quarrel ensured and, therefore, the appellant was nurturing a  grievance against the deceased and his family members.  The  witnesses have further deposed that on the date of the  incident when the deceased was on his way to engage  agricultural labourers, the appellant armed with a stick, MO1  appeared before the deceased and that the appellant beat the  deceased on the head two or three times and that on account  of the said injuries inflicted by the appellant, the deceased fell  down and later on he was removed to the hospital and treated  by various doctors and ultimately in spite of the treatment, he  died on 9.4.1994.

Coming to the plea regarding absence of proper medical  treatment the argument is clearly unsustainable in view of the  Explanation to Section 299 IPC. The explanation clearly  contemplates that where the death is caused by bodily injury,  the person who causes such bodily injury shall be deemed to  have caused the death, although by resorting to proper  remedies and skilful treatment the death might have been  prevented.  

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

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’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 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.    

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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 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

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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:

"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

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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  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 scenario in the case is set aside on the  touchstone of principles set out above, it becomes clear that  the appellant is responsible for causing the death of the  deceased.  However, the application of Section 304 Part II IPC  would be applicable and not Section 302 IPC. The conviction is  accordingly altered.  Ten years custodial sentence would meet  the ends of justice.       

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Appeal is allowed to the aforesaid extent.