REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  848           OF 2009 (Arising out of SLP (Crl.) No.2872 of 2007)

Siri Kishan & Ors. .....Appellants

Versus

The State of Haryana     ....Respondent

WITH

CRIMINAL APPEAL NO.     850       OF 2009 (Arising out of SLP (Crl.) No.    3119           of 2007)

(Arising out of CRLMP No.11936 of 2007) WITH

CRIMINAL APPEAL NO.     849     OF 2009 (Arising out of SLP (Crl.) No.3658 of 2007)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. These three appeals relate to the judgment of a Division Bench of the Punjab and  

Haryana High Court dealing with Criminal Appeal No. 366-SB of 1999, Criminal  

Appeal  No.557-DB  A of  1999  and  Criminal  Revision  No.788  of  1999.  The first  

Criminal appeal was filed by the present appellants.  The second criminal appeal  

was filed by the State of Haryana and the third i.e. Criminal Revision Petition was  

filed by the complainant Gulam Bashir.

3. Background facts in a nutshell are as follows:

4. Originally there were 11 accused persons and they were the appellants in Criminal  

Appeal No.366-SB of 1999.  They were convicted for offences punishable under Sections 148,  

302 Part II read with Sections 149, 325 read with Sections 149, 324 read with Section 149  

and 323 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’). They  

were convicted in the following manner:

Name  of  Convi ct

Convic tion recorde d  Under  Section

Sentence awarded

Amoun t of  Fine  impose d

Sentenc e  awarde d  in  default  of  payme nt  of  fine

1.Dali p  Singh

304  Part  II  IPC

Five  years  RI  Each

Rs.700/

-

Four  months  RI

2.Mir  Singh

read  with  149  IPC

3.Pars hadi

325  IPC  read  with  149  IPC

324  IPC  read  with  149  IPC

323  IPC  read  with  149  IPC

148  IPC

Three  years  RI  each

Two  years  RI  each

Six  months  RI each

Two  years  RI  each

Rs.300/ - each

Two  months  RI

1.Siri  Krish an  

304  Part  II  IPC

Seven  years  RI  each  

Rs.100 0/-

Six  months  RI

2.Sam ey  Singh

read  with  149  IPC

3.  Dhara m  Singh

325  IPC  read  with  149  IPC

Three  years  RI  each

Rs.300/ - each

Two  months  RI

4.  Hari  Singh

324  IPC  read  with  149  IPC

Three  years  RI  each

5.  Indraj  alias  Inder pal

323  IPC  read  with  149  IPC

Six  months  RI each

6.Kan war  Singh

148  IPC

Two  years  RI  each

7.Sohr ab 8.  Mam man

5. State  of Haryana also filed the appeal dissatisfied with the acquittal of all the  

accused for the main charge of Section 302 read with Section 149 IPC. Complainant also  

filed the separate Revision Petition with similar prayer and for grant of compensation.

6. Background facts, as projected by the prosecution during trial, are essentially as  

follows:

The  instant  case  was  registered  on  the  basis  of  statement  Ex.P.A.  of  Gulam  Rasool  

complainant. His real brother Habib is described hereinafter as deceased in this case, who  

according to the allegations on 1.8.1988 had gone to the school building in the village for  

filing  nomination  papers  for  election  of  Sarpanch.  Complainant  Gulam  Rasool  was  

accompanying him. Habib was to contest the election of Sarpanch. At about 11 A.M. when  

they came out of the said school building, accused Samey Singh and Dharam Singh armed  

with Pharsa each and remaining accused present there had lathies in their hands.  When  

complainant and Habib came out of the school, Samey Singh accused gave a lalkara saying  

that  they should be killed (in  village parlance,  it  is  stated,  ‘Inhe Maar Lo’).  Thereafter,  

Samey Singh accused gave Pharsa blow on the head of Gulam Rasool and Siri Kishan gave a  

lathi blow on the head of Habib.  Accused Sohrab also gave a lathi blow on the back of  

Gulam Rasool touching his neck. Accused Mamman also gave a lathi blow on his back. It, is  

then  alleged  that  when  Jan  Mohammad  son  of  Sultan,  Suleman  and  another  Jan  

Mohammad son of  Shakurmal reached there on hearing the noise and tried to intervene in  

order  to rescue the complainant party, accused Indraj and Kanwar Singh gave lathi blows

to Habib who was already lying down. The blow inflicted by Kanwar Singh hit the waist of  

Habib whereas lathi blow given by accused Indraj hit him on his back. Dharam Singh, Dalip  

Singh, Indraj and Kanwar Singh accused had hit  Jan Mohamniad son of Shakurmal on  

right  side  of  head,  right  forearm,  right  hand,  right  shoulder  and  the  right  arm.   Jan  

Mohammad  son  of  Sultan,  Gulam  Rasool,  his  brother  Habib,  Jan  Mohammad  son  of  

Shakurmal and Shakurmal had sustained inuries in this occurrence and they were removed  

to hospital. A ruqa was sent to Police  Station Tauru, from where Om Parkash, SI, SHO  

(PW11) reached the hospital and recorded statement Ex.PA of Gulam Rasool, on the basis of  

which  formal FIR Ex.  PA/2  was recorded.   Gulam Rasool  and  Habib  were referred to  

General Hospital, Gurgaon and from there to Safdarjang Hospital, New Delhi, where Habib  

succumbed to the injuries on 2.8.1988. Initially, the case was registered under Sections 148,  

149, 324 323 506 IPC and after the death of Habib Section 302 IPC was added.

During the investigation the accused persons were arrested on different dates and weapons  

of offence were recovered from them, which were taken into possession.

After the completion of the investigation, all the accused were challaned.

It is worth mentioning here that  since Siri Kishan accused was serving in Indian Army,  

proceedings  were  initiated  against  him  after  obtaining  sanction  from  the  concerned  

Commanding Officer. This was the reason that a supplementary challan was filed qua him  

and ultimately all the accused were tried together. Charge under Sections 148, 302, 323, 325,  

324 and 323 read with Section 149 IPC were framed against all the 11 accused.

The prosecution in order to substantiate its case examined Gulam Rasool, complainant as  

PW1 who had given the detailed description of the entire occurrence as already narrated by  

him in his initial statement Ex.PA.

PW2  is  Suleman  son  of  Jayudin  the  other  injured  witness.  He  also  corroborated  the  

testimony of Gulam Rasool on all material aspects describing the specific role of each of the  

accused.

PW 3 is Mul Chand Punia, the Draftsman had prepared the scaled Plan Ex.PB of the place  

of occurrence.  PW 4 is Ram Chander who while posted as Sub Inspector in Police Station  

City Gurgaon had moved an application on 2.8.1988 for obtaining the medical opinion on  

Habib injured with respect to his fitness to make statement.

Dr.  S.P.  Singh  (PW 5)  who was posted  in  the  General  Hospital,  Gurgaon,  on  1.8.1988  

examined  Hubib  Suleman,  Gulam  Rasool,  Jan  Mohammad  son  of  Sultan  and  Jan  

Mohammad son of Shakur Mal. The said witness also was cross examined to show that on  

3.8.1988 he had examined accused Prasadi Lal under the Court orders and found some  

injuries.

 Dr. B.B. Aggarwal (PW 6) had radiologically examined Jan Mohammad son of Shakur  

Mal,  Suleman  and  found  one  fracture  one  injury  each.  Dr.  S.K.  Verma  (PW10)  had  

conducted autopsy on the dead body of Habib. The plea taken by the accused, as is evident  

from their statement recorded under Section 313 of the Code of Criminal Procedure, 1973  

(in short the ‘Code’), was of false implication.  However, accused Prasadi Lal stated that a  

large crowd had collected at the spot at the time of occurrence and many persons out of the  

crowd had started throwing stones on the complainant party as a result of which they had  

received injuries.  He had further stated that  the accused had been falsely implicated on  

account  of  party  fraction  in  the  village.  Seven  witnesses  were  examined  to  further  the  

defence version.  

The trial court, as noted above, on consideration of the evidence found the accused persons  

guilty and convicted and sentenced them. Primary stand of the accused persons before the  

High Court in the appeal filed by them was that Indraj had not filed nomination papers at  

the  time of  occurrence and  the  finding  of  the  trial  court  that  Indraj  had  already  filed  

nomination is not correct. It was also pointed out that the ocular testimony stands falsified  

by the medical evidence and in any event the case being one of free fight at the most each  

accused can be fastened with individual liability taking into consideration the specific role or  

part attributed to each of the accused. In any event Sections 148 and 149 had no application.

It is pointed out that accused No.1 was serving in the army and had been falsely implicated.  

In the revision filed before the High Court, the complainant adopted the stand of the State  

and also in addition prayed for compensation.

By  the  impugned  judgment  the  High  Court  disposed  of  the  Criminal  appeal  and  the  

Revision dismissing each one of them.

7. In support of appeal filed by the accused the stand taken before the High Court  

has been reiterated. It is pointed out that accused Nos.5 and 9 have already died. It is stated  

that the PWs 1 & 2 were stated to be injured witnesses, but their evidence does not inspire  

confidence. Additionally, this being a case of free fight, Sections 148 and 149 IPC have no  

application.  The  background  for  the  instant  case  has  been  twisted.  Undisputedly,  no  

nomination was filed by Indraj and, therefore, the question of that being the starting point  

of the prosecution’s case is highly unreliable. The partisan approach of the investigating  

agency is clear from the fact that no action was taken even though some of the accused  

persons have suffered injuries.  In any event it is submitted that custodial sentence of ten  

years given for the offence relatable to Section 300 Part II is harsh.

8. Learned counsel for the State in support of the appeal submitted that the High  

Court after having found the accused persons guilty, should have convicted them for offence  

punishable under Section 302 read with Section 149 IPC. Not only did they inflict injuries  

on the deceased and the witnesses, but also were armed with deadly weapons, and it showed  

their clear intention.

9. Leaned counsel for the informant made similar statements.

10. It shall first be desirable to examine the question relating to non-explanation of  

injuries on the accused.

11. One of the pleas is  that  the prosecution  has not  explained the injuries on the  

accused.  Issue is  if  there  is  no  such  explanation  what  would  be  its  effect?  We are  not  

prepared to agree with the learned counsel for the defence that in each and every case where  

prosecution fails to explain the injuries found on some of the accused, the prosecution case  

should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai  

v. The State of Bihar (1968 (3) SCR 525), it was observed:

“...In our judgment, the failure of the prosecution to offer any explanation in that regard  shows that evidence of the prosecution witnesses relating to the incident is not true or at any  rate not wholly true. Further those injuries probabilise the plea taken by the appellants.”

12. In another important case Lakshmi Singh and Ors. v. State of Bihar (1976 (4)  

SCC 394), after referring to the ratio laid down in Mohar Rai’s case (supra), this Court  

observed:

“Where the prosecution fails to explain the injuries on the accused, two results  follow:

(1) that the evidence of the prosecution witnesses is untrue; and

(2) that the injuries probabilise the plea taken by the appellants.”

It was further observed that:

“In a murder case, the non-explanation of the injuries sustained by the accused at  about  the  time  of  the  occurrence  or  in  the  course  of  altercation  is  a  very  important  circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the  occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the  person of the accused are lying on a most material point and, therefore, their evidence is  unreliable;

(3) that in case there is a defence version which explains the injuries on the  person of  the  accused assumes much greater importance  where the  evidence  consists  of  interested or inimical witnesses or where the defence gives  a  version which competes in  probability with that of the prosecution one.”

13. In Mohar Rai’s case (supra) it is made clear that failure of the prosecution to offer  

any explanation regarding the injuries found on the accused may show that the evidence  

related to  the  incident  is  not  true or at  any rate  not  wholly true.  Likewise in  Lakshmi  

Singh’s case (supra) it is observed that any non-explanation of the injuries on the accused by  

the prosecution may affect the prosecution case. But such a non-explanation may assume  

greater importance where the defence gives a version which competes in probability with  

that of the prosecution. But where the evidence is clear, cogent and creditworthy and where  

the Court can distinguish the truth from falsehood the mere fact that the injuries are not  

explained by the prosecution cannot by itself be a sole basis to reject such evidence, and  

consequently the whole case. Much depends on the facts and circumstances of each case.  

These aspects were highlighted by this Court in Vijayee Singh and Ors. v. State of U.P. (AIR  

1990 SC 1459).

14. Non-explanation  of injuries by the  prosecution  will not  affect  prosecution  case  

where 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  outweighs  the  effect  of  the  omission on the  part  of  prosecution  to  

explain the injuries. As observed by this Court in  Ramlagan Singh v.  State of Bihar (AIR  

1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by  

the  accused persons.   It  is  for the  defence to  put  questions to the prosecution  witnesses  

regarding the injuries of the accused persons.  When that is not done, there is no occasion  

for the prosecution witnesses to explain any injury on the person of an accused.  In  Hare  

krishna Singh  and Ors. v.  State of  Bihar (AIR 1988 SC 863),  it  was observed that  the  

obligation of the prosecution to explain the injuries sustained by the accused in the same  

occurrence may not arise in each and every case. In other words, it is not an invariable rule  

that  the  prosecution  has  to  explain  the  injuries  sustained  by  the  accused  in  the  same  

occurrence.  If the witnesses examined on behalf of the prosecution are believed by the Court  

in  proof  of  guilt  of  the  accused  beyond  reasonable  doubt,  question  of  obligation  of  

prosecution  to  explain  injuries  sustained  by  the  accused  will  not  arise.   When  the  

prosecution comes with a definite case that the offence has been committed by the accused  

and  proves  its  case  beyond  any  reasonable  doubt,  it  becomes  hardly  necessary  for the  

prosecution to again explain how and under what circumstances injuries have been inflicted  

on the person of the accused.  It is more so when the injuries are simple or superficial in  

nature.  In the case at hand, trifle and superficial injuries on accused are of little assistance  

to them to throw doubt on veracity of prosecution case, particularly, when the accused who  

claimed to have sustained injuries has been acquitted.          

15. These aspects were highlighted in Sucha Singh and Anr. v. State of Punjab (2003  

(7) SCC 643).

16. So far as the individual acts are concerned, according to the prosecution version,  

A1 had inflicted injury on the head of the deceased, A2 had inflicted injury on PW1, A3 had  

inflicted injury on one Jan Mohammad, who was not examined as a witness.  Similar was

the position so far as A4 is concerned. A5 who has died inflicted injury on the deceased. A6  

had inflicted injuries on Jan Mohammad and PW2.   A7 had given a lathi  blow to  the  

deceased. A8 had inflicted blow on Jung Mohammad, and the deceased A9 as noted above  

has expired.  A10 had inflicted injuries on PW1 and A1 to A11 have been convicted with the  

aid of Section 149.  The evidence of PW 1 is clear, categorical and he was one of the eye  

witnesses.  Similar is the position vis-a-vis PW 2.

17. The High Court has noted that from the side of the complainant which includes  

deceased also, five persons have received in total as many as 15 injuries.  The main injury on  

the  head  of  the  deceased  has  been  attributed  to  A1.   Similarly,  Gulam  Rasul,  Jan  

Mohammad son of Sultan and another Jan Mohammad, have also received wounds on the  

head.  Injury on the head of Gulam Rasul was an incised wound caused by a Farsa. Jan  

Mohammad son  of  Sultan  had  received  an  incised  wound  on  his  head.  The  other  Jan  

Mohammad had received lacerated wound on the head. The other injuries on the persons of  

all the other injured persons are in the shape of bruises or lacerated injuries most of which  

have been caused by lathies.   

18. The prosecution evidence clearly shows that the common object of the unlawful  

assembly was to commit the murder of Habib and it was not just an assembly at a particular  

point of time where the accused persons had assembled with Farsa and lathis in order to  

cause  injury  on  the  complainant  including  Habib-deceased  who  had  gone  for  filing  

nomination papers for the Panchayat election.

19. The High Court found that  the purpose of the unlawful assembly was to stop  

Habib, his brother Gulam Rasul and their supporter from either contesting the election or  

supporting the persons who filed the nomination.  They were all present near the gate of the  

school where the nomination papers were to be filed. Both the trial court and High Court

have on analyses of the evidence come to hold that all the accused persons had formed an  

unlawful assembly armed with weapons which were likely to cause death and,  therefore,  

conviction under Section 148 IPC and application of Section 149 IPC does not suffer from  

any infirmity.  

20. According to informant the appropriate conviction would be under Section 302  

IPC.

21. 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 IPC. 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 –

Subject  to  certain  exceptions  

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.

 22. Clause (b) of Section 299 IPC corresponds with Clauses (2) and (3) of Section 300  

IPC. 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 IPC.

23. Clause (b) of Section 299 IPC does not postulate any such knowledge on the part  

of the offender. Instances of cases of falling under Clause (2) of Section 300 IPC 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 IPC, instead of the words 'likely to cause death' occurring in the corresponding Clause  

(b) of Section 299 IPC, 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 IPC and Clause (3) of Section 300 IPC 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 IPC  

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.

24. 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.

25. 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 IPC,  

"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.

26. 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 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."

27. 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."

28. 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.

29. 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 IPC clearly brings out this point.

30. Clause  (c)  and  Clause  (4)  of  Section  300  IPC 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 IPC 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.

31.In  the  background  facts,  it  is  clear that  the  conviction  as  done  is  appropriate.  The  

sentences awarded do not suffer from any infirmity.

32. All the appeals are without merit, deserve dismissal, which we direct.  

………………………….J. (Dr. ARIJIT PASAYAT)

………………………….J. (P. SATHASIVAM )

New Delhi, April 27, 2009