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CASE NO.: Appeal (crl.)  865 of 2006

PETITIONER: Settu and Ors.

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 22/08/2006

BENCH: ARIJ1T PASATAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E NT (Arising out of S.L.P. (Crl.) No. 267 of 2006)

ARIJIT PASAYAT, J.

Leave granted.

Heard learned counsel for the parties.

Appellants call in question legality of the judgment  rendered by a Division Bench of the Madras High Court  confirming conviction of each of the appellants and imposition  of sentence as done by the learned Additional Sessions Judge  Vellore. While appellant Nos.1 and 2 were convicted for offence  punishable under Section 302 of the Indian Penal Code, 1860  (in short the IPC), appellant No.3 was convicted for offence  punishable under Section 302 read with Section 34 IPC.

The trial Court held that the prosecution had established  the accusations that on 22.8.1995 at 6.00 P.M. the appellants  caused injuries to Ramesh (hereinafter referred to as the  ’deceased’) by cutting him with knife and pichuvas and as a  result of the said injuries, the deceased breathed his life at  about 3.2O P.M. on 29.8.1995 at Christian Medical College  Hospital, Vellore while undergoing treatment. The further  allegation against appellant No.2 was that during the incident  he caused injuries to Babu (PW-12). Appellant No.2 was  accordingly found guilty of offence punishable under Section  324 IPC and sentenced to one year rigorous imprisonment.   The factual position as highlighted by the prosecution  during trial essentially as follows:

Chandru (P.W.1) is the elder brother of the deceased and  Babu (P.W.12) was his friend. On 22.08.1995 at about 3.30  p.m. Babu (P.W.12) met the deceased, at the bus stop near  Sankaranpalayam and deceased was seen with blood-stained  injuries. Babu (P.W.12) questioned him as to what happened.  Deceased informed him that appellant Nos.1 to 3 and another  had beaten him. Babu (P.W.12) took the deceased to the  hospital, where he was given treatment. Later, the deceased  gave a complaint at the Police Station. P.W.12 and the  deceased were returning to their village via Sankaranpalayam.  While they were at the college road, appellant Nos.1 to 3 were  seen standing with weapons in their hands. On seeing the

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deceased, the appellant No.1, removing a knife, which he had  kept concealed, cut him on the left side of the head, which  caused an injury on the left eyebrow. He was also inflicted an  injury on the right ear by the said appellant. The deceased fell  down. The appellant No.1, once again inflicted cut on the head  of the deceased. The appellant No.2 cut the deceased on his  back as well as on his right knee. P.W.12 intervened and he  also sustained injury on account of the assault by the  appellant No.2, which warded off.  P.W.12 suffered an injury  on the right wrist. The appellant No.3 beat the deceased on the  right hand causing grievous injury. The occurrence was  witnessed by P.W.12 and by P.W.1, the elder brother of the  deceased, who had come to the scene of occurrence in search  of his brother on hearing about the earlier occurrence, which  took place at about 3.30 p.m., as well as by P.Ws 2 to 8.  The  deceased was taken to the Government Hospital at Veliore,  where he was examined by the Casualty Medical Officer  (P.W.19) at 7.10 p.m. The doctor found the following  injuries:\027

1.      A laceration on the left eyebrow with force. Fracture frontal sku11 5X 1/2 X 1/2 deep. 2.      A laceration on the right forehead 5 X 1/2 X 1/2 cm.

Ex. P.14 is the wound certificate. In the meantime P.W.  12 appeared before P.W.20, the Sub-Inspector of Police of  Vellore South Police Station and gave a complaint, which was  reduced into writing. The said complaint is Ex. P.4. On the  complaint (Ex. P.4) P.W.20 registered a crime in Crime No.900  of 1995 under Sections 326 and 323 I.P.C. Investigation was  taken up by P.W.20.

P.W.20 reached the scene of occurrence and examined  witnesses. As there was no sufficient light at the place, he  returned to the police station. In the meantime, P.W.12, who  had suffered injury was referred to the hospital and was  examined by P.W.19. The doctor found an abrasion on his  right wrist measuring 1 X 1/8 cm.  P.W.12 complained of pain  in his arm. Ex. P.15 is the wound certificate issued by the  Doctor. The bloodstained earth and sample earth, M.Os.9 and  10 were seized under a mahazar Ex. P.19. He went to  Christian Medical College Hospital, where the deceased was  sent from Government Pentland Hospital, Veilore, but he could  not record the statement of injured Ramesh as he was  unconscious. P.W.20 seized M.O.5 banian and M.O.6 pant, of  the deceased Ramesh under a mahazar Ex. P.3. He searched  for the appellants and arrested appellant Nos. 2 and 3 at  about 1.0O p.m. on 24.8.95 when they were near Bagayam  bus stand. They were questioned. The appellant No.2 gave a  statement and in pursuance of the admissible portion (Ex. P.  2O) given by him, and on production by him knife and two  sticks M.O. 8 series, were seized under a mahazar, (Ex. P.21).  On 24.8.95, investigation in the crime was taken up by P.W.  21, the Inspector of Police. On 4.9.1995 appellant No.1 was  arrested and on the basis of his statement a knife was  recovered.

After completion of investigation Investigating Officer filed  charge sheet and the accused persons were sent up for trial.

In order to further its version prosecution examined nine  witnesses. Out of them, PWs 2 to 8 made departure from the  statement given during investigation. Therefore, prosecution  relied upon the evidence of PWl and PW12. The trial Court

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held that the evidence of these two witnesses was cogent,  credible and trustworthy and accordingly recorded the  convictions and imposed sentence as noted earlier.

The accused persons preferred an appeal before the High  Court which as noted supra was dismissed by the impugned  judgment.

Learned counsel of or the appellants submitted that the  prosecution version is not credible, cogent and is essentially  unreliable. The evidence of PWs. 1 and 12 has not been  analysed carefully because former was the elder brother of the  deceased while the later was his friend. Additionally, the  scenario as described by the prosecution clearly rules out  application of Section 302 IPC. So far as appellant No.3 is  concerned, the prosecution version is to the effect that he  assaulted on the right leg and not on any vital part. The  Doctor PW13 has clearly indicated that the injuries which  were stated to be fatal injuries were lacerated injuries.  

In response, learned counsel for the respondent-State  supported the judgment of the trial court and the High Court.  According to him the concurrent finding of fact recorded by  the courts below should not be interfered with.

       The evidence of PWs 1 and 12 have been analysed in  great detail by the trial Court and the High Court. The same  has been rightly held to be cogent and credible.    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 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 greatest 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  punishment 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 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 \026 Subject to certain exceptions

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

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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 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 of 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 acts 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 proceeded further, and fourthly it  must be proved that the injury of the type just described made  up 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 ingredient 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

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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 leaned 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 come 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 the injury that was intended to be  inflicted.

Thus, according to the rule laid down in Virsa Singh’s  case, eve 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 and Clause (4) of Section 300 both

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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  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) and recently in Abdul Waheed Khan @  Waheed and Ors. v. State of Andhra Pradesh (2002 (7) SCC  175) and in Thangaiya v State of Tamil Nadu (2005 (9) SCC  650).

       The factual scenario is examined in the back ground of  the legal principles set out above. The conclusion is that the  appropriate conviction would be in terms of Section 302 IPC so  far as appellant No.1 is concerned. The appeals stands  dismissed so far as he is concerned.  It is the prosecution case  that the fatal injuries are attributable to him. He had  assaulted the deceased with a knife which was concealed by  him.  Taking note of the weapon used by the appellants and  the place where injuries were inflicted, appellant No.2 has to  be convicted under Section 304 Part I IPC.  So far as appellant  No.3 is concerned, he is to be convicted in terms of Section  326 IPC. The conviction of appellant No. 2 in terms of Section  324 IPC is in order. The custodial sentence of 10 years would  meet the ends of justice so far as appellant No.2 is concerned.  For appellant No.3, the custodial sentence would be three  years rigorous imprisonment. The sentence awarded by the  trial court as affirmed by the High Court so far as appellant  No.2 is concerned in respect of his conviction in terms of  Section 324 IPC remains unaltered. The two sentences  imposed on him shall run concurrently. The appeal is allowed  to the aforesaid extent, so far as appellant Nos. 2 and 3 are  concerned.

In view of the disposal of the appeal itself, no orders are  necessary to be passed in miscellaneous petitions. 27963