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CASE NO.: Appeal (crl.)  630 of 2007

PETITIONER: Shakti Dan

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 26/04/2007

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

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO.    630          OF 2007 (Arising out of S.L.P. (Crl.) No.5210 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Rajasthan High Court upholding the  conviction of the appellant for an offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).  The appellant was convicted by learned Addl. Sessions Judge,  Parbatsar who sentenced him to undergo life imprisonment and  to pay a fine of Rs.200/- with default stipulation.  

3.      Background facts in a nutshell are as follows:          A written report (Ex.P/18) was submitted before Sattar  Khan, Sub-Inspector of Police, PS Nawa (PW-11) by Idan (PW-6)   on 9.6.1999 with the averments that in the morning i.e. at about  7a.m.  accused Shakti Dan started beating his wife at his house  so she ran away from there and reached to the house of Idan  (PW-6), the younger brother of the accused. The mother of the  accused, namely, Smt. Ugam Kanwar also followed her and she  also reached the house of Idan which was near the house of the  accused. Smt. Ugam Kanwar (hereinafter referred to as the  ’deceased’), advised his son accused Shaktidan that he should  not quarrel with his wife. On hearing this, accused caught hold  of his mother and dragged her out from the house and took her  in front of the temple of deity Karni Mata, where he throttled her  neck, on account of which she died.

4.      On this report, which was received by Sattar Khan (PW-1),  he thought it proper to conduct preliminary investigation. He  called the photographer and then prepared Fard Ex.P/3. He also  inspected the site and prepared an Inspection Note (Ex.P/1). On  the back of Ex.P/1 Fard Surat Hall Lass was prepared and that  is Ex.P/19. Fard Panchayatnama was also prepared, which is  Ex.P/2. The dead body was taken to Govt. Hospital, Nawa, where  postmortem of the dead body was conducted by Dr.  Satyendracharya Swami (PW-14). The postmortem report is  Ex.P/5. After postmortem, the dead body was handed over vide

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Ex.P/20 through Fard Supadaginama of the dead body of  deceased Ex.P/22 to  Idan (PW-6). Thereafter, he reached to  Police Station Nawa and submitted a written report (Ex.P/18)  given to him by Idan before the SHO, Police Station, Nawa   Ishwar Singh (PW-13), who registered case No.61/99 under  Section 302 IPC.

5.      A regular FIR was chalked on the basis of above report  (Ex.P/21). Thereafter, the investigation was conducted by Ishwar  Singh (PW-13). He recorded statements of the witness of the case.  The accused was arrested through Arrest Memo Ex.P/4 in  presence of the witnesses. After investigation, a charge sheet was  presented in the Court of Judicial Magistrate, Nawa under  Sections 302 and 323 IPC on 19.7.1999. Thereafter, the case was  committed to the Court of Sessions for trial. The learned Addl.  Sessions Judge, Parbatsar, after hearing both the sides on  charge, framed charges under Section 302 and 323 of IPC on  16.12.1999. Accused denied the charges framed against him and  claimed trial.

6.      In support of the case, prosecution examined Hamir Singh  (PW-1),  Kishorilal (PW-2), Pushpa Kanwar (PW-3) (the wife of the  accused), Shambhoo Singh (PW-4),  Saroj Kanwar (PW-5)(wife of  PW6 Idan), Idan (PW-6), Kishore Singh (PW-7), Madho Ram (PW- 8), Jogendra Singh (PW-9),  Girdharilal (PW-10),  Sattar Khan  (PW-11),  Santosh (PW-12),  Ishwar Singh (PW-13) and Dr.  Satyendracharya Swami (PW-14). After completion of the trial,  statement of the accused was recorded on 01.12.2001. In his  statement under Sec. 313 of the Code of Criminal Procedure,  1973 (in short the ’Code’)   accused has denied the charges  against him and stated that there was enmity of the accused with  Shambho Singh (PW-4).  

7.      The learned trial Judge, after hearing both sides, while  acquitting the accused of the charge under Sec. 323 of the IPC,  found the accused guilty of the offence under Sec. 302 of the IPC  and sentenced him as stated hereinabove. Feeling aggrieved and  dissatisfied with the judgment and order of conviction and  sentence dated 17.01.2002 in Sessions Case No. 31/99, the  accused has preferred before the High Court, which was  dismissed.    

8.      The High Court found that the evidence of witnesses is  credible and cogent and therefore there was no merit in the  appeal before it.  

9.      In support of the appeal, learned counsel for the appellant  submitted that there was absolutely no motive for killing the  mother. It was submitted that the evidence of PW-4 on which  reliance has been placed is not   a reliable witness.  

10.     It is submitted that even if the prosecution version is  accepted, the appellant throttled his mother which resulted in  her death.  There was no intention to murder her. Therefore, it  was submitted that the case is not covered under Section 302  IPC.  

11.     Learned counsel for the respondent on the other hand  supported the judgment and conviction as done by the trial  Court and upheld by the High Court.  

12.     The evidence of PW-4 though questioned to be unreliable, is  credible.  

13.     This brings us to the crucial question as to which was the

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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.

14.     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

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        KNOWLEDGE ****

(c) with the knowledge that             (4) with the knowledge that  the act is likely to cause                      the act is so imminently         death.  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."     15.     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.

16.     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 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.  17.     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

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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.

18.     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.

19.     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."

20.     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

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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."

21.     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.

22.     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.

23.     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.

24.     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.

25.     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), Augustine  Saldanha v. State of Karnataka (2003 (10) SCC 472) and  Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650).  

26.     Considering the backgrounds facts and applying the

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principles set out above we are of the view that this is case where  the conviction would be appropriate in terms of Section 304 Part  I, IPC and custodial sentence of 10 years would meet the ends of  justice. The appeal is allowed to the aforesaid extent.  We  appreciate the able assistance which learned Amicus Curiae  rendered to the Court.