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CASE NO.: Appeal (crl.)  690 of 2007

PETITIONER: Sunder Lal

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 07/05/2007

BENCH: Dr. ARIJIT PASAYAT, P.K. BALASUBRAMANYAN & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   690     OF 2007 (Arising out of SLP (Crl.)No. 4589 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      In this appeal judgment of a Division Bench of the  Rajasthan High Court is the subject matter of challenge. The  appellant was found guilty of offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’),  while the co-accused Laxmi Narain was found guilty of offence  punishable under Section 302  read with Section 34 IPC. Each  of the accused was sentenced to undergo imprisonment for life  and to pay a fine of Rs.1,000/- each with default stipulation.  The trial Court’s judgment of conviction & sentence was  maintained.

3.      Background facts in a nutshell are as under:

4.      On 22.8.1998 a ’Parcha Bayan’ (Ex.P20) of injured  Heeralal (hereinafter referred to as the ’deceased’) was  recorded by the SHO, Police Station, Chechat, Distt. Kota,  wherein it was stated that accused appellant Sunderlal told  him as to why he has been abused. He told him that he should  remove the stones. Subsequently in the night at about 2 a.m.  when he was sleeping in his house, accused Sunderlal  inflicted a blow on his head by ’Gandasi’ with the intention to  kill him and also inflicted injuries on his hand. He also stated  that accused Laxmi Narain also inflicted injuries on his legs.  When he cried Chaturbhuj,  Deva, Rameshwar came but both  the accused appellants ran away. On the basis of this ’Parcha  Bayan’ Police registered a case for offences under Sections  448, 307, 323 and 34 IPC. Subsequently, FIR No.125/1998  (Ex.P.22) was registered on 22.8.1998 itself.  The injured was  examined in the night itself at about 3 a.m. at Primary Health  Centre, Chechat by Dr. Girish Chand (PW-1). The injured  succumbed to the injuries at about 7 a.m. His post-mortem  was conducted on 22.8.1998 itself by Dr. Ashok Mundara  (P.W.22). The I.O. prepared the site plan and recorded the  statements of the prosecution witnesses under Section 161 of  the Code of Criminal Procedure, 1973 (in short the ’Code’) The

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accused persons were arrested and on the basis of their  information, the weapons i.e. gandasi and lathi were  recovered. After death of Heera Lal the case was converted for  offence punishable under Section 302 IPC. After completion of   the investigation, the police filed a challan against both the  accused appellants. The case was committed and the trial  Court framed the charges against the accused appellant  Sunderlal for offence under Section 302 IPC and appellant  Laxmi Narain for offence under Section 302 read with Section  34 IPC. Both the accused denied the charges and claimed to  be tried.  

5.      The trial Court found the evidence to be cogent and  credible.  The dying declaration was found to be reliable.      The   High Court found the judgment of the trial Court to be in order  and dismissed the appeal.  

6.      In support of the appeal, learned counsel for the  appellants submitted that the High Court should not have  placed reliance on the so called dying declaration. The same  was not worthy of acceptance. Additionally, when the recovery  has been disbelieved, the conviction solely on the highly  improbable dying declaration should not have been made.   Alternatively, it was submitted that offence under Section 302  IPC has not been made out.  

7.      In response, learned counsel for the respondent-State  supported the order of the courts below.  

8.      The dying declaration was recorded at 3.45 a.m. on  22.8.1998. It was categorically stated that he was sleeping in  the night. The appellant came and assaulted him on his head  with the gandasi with the intention of killing him and the co- accused Laxmi Narain inflicted injuries on his legs. The dying  declaration was treated as the first FIR when the investigation  was taken.  

9.      At this juncture, it is relevant to take note of Section 32  of the Indian Evidence Act, 1872 (in short ’Evidence Act’)  which deals with cases in which statement of relevant fact by  person who is dead or cannot be found, etc. is relevant. The  general rule is that all oral evidence must be direct viz., if it  refers to a fact which could be seen it must be the evidence of  the witness who says he saw it, if it refers to a fact which  could be heard, it must be the evidence of the witness who  says he heard it, if it refers to a fact which could be perceived  by any other sense, it must be the evidence of the witness who  says he perceived it by that sense. Similar is the case with  opinion. These aspects are elaborated in Section 60 of the  Evidence Act. The eighth clauses of Section 32 are exceptions  to the general rule against hearsay just stated. Clause (1) of  Section 32 makes relevant what is generally described as  dying declaration, though such an expression has not been  used in any Statute. It essentially means statements made by  a person as to the cause of his death or as to the  circumstances of the transaction resulting in his death. The  grounds of admission are: firstly, necessity for the victim being  generally the only principal eye-witness to the crime, the  exclusion of the statement might deflect the ends of justice;  and secondly, the sense of impending death, which creates a  sanction equal to the obligation of an oath. The general  principle on which this species of evidence is admitted is that  they are declarations made in extremity, when the party is at  the point of death and when every hope of this world is gone,  when every motive to falsehood is silenced, and the mind is

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induced by the most powerful considerations to speak the  truth; a situation so solemn and so lawful is considered by the  law as creating an obligation equal to that which is imposed by  a positive oath administered in a Court of justice. These  aspects have been eloquently stated by Lyre LCR in R. v. Wood  Cock (1789) 1 Leach 500. Shakespeare makes the wounded  Melun, finding himself disbelieved while announcing the  intended treachery of the Dauphin Lewis explain:

               "Have I met hideous death within my  view,                 Retaining but a quantity of life,

               Which bleeds away even as a form of wax,

               Resolveth from his figure ’gainst the fire?                 What is the world should        make me now deceive,                 Since I must lose the use of all deceit?

               Why should I then be false since it is true

               That I must die here and        live hence by truth?"                                 (See King John, Act 5, Sect.4)

The principle on which dying declaration is admitted in  evidence is indicated in legal maxim "nemo moriturus  proesumitur mentiri \026 a man will not meet his maker with a lie  in his mouth."

10.     This is a case where the basis of conviction of the  accused is the dying declaration. The situation in which a  person is on deathbed is so solemn and serene when he is  dying that the grave position in which he is placed, is the  reason in law to accept veracity of his statement. It is for this  reason the requirements of oath and cross-examination are  dispensed with. Besides, should the dying declaration be  excluded it will result in miscarriage of justice because the  victim being generally the only eye-witness in a serious crime,  the exclusion of the statement would leave the Court without a  scrap of evidence.  

11.     Though a dying declaration is entitled to great weight, it  is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth  as an obligation of oath could be. This is the reason the Court  also insists that the dying declaration should be of such a  nature as to inspire full confidence of the Court in its  correctness. The Court has to be on guard that the statement  of deceased was not as a result of either tutoring, or prompting  or a product of imagination. The Court must be further  satisfied that the deceased was in a fit state of mind after a  clear opportunity to observe and identify the assailant. Once  the Court is satisfied that the declaration was true and  voluntary, undoubtedly, it can base its conviction without any  further corroboration. It cannot be laid down as an absolute  rule of law that the dying declaration cannot form the sole  basis of conviction unless it is corroborated. The rule requiring  corroboration is merely a rule of prudence. This Court has laid  down in several judgments the principles governing dying  declaration, which could be summed up as under as indicated  in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):

       (i)     There is neither rule of law nor of prudence that  dying declaration cannot be acted upon without corroboration.  [See Munnu Raja & Anr. v. The State of Madhya Pradesh

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(1976) 2 SCR 764)]         (ii)    If the Court is satisfied that the dying declaration is  true and voluntary it can base conviction on it, without  corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav  and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of  Bihar (AIR 1983 SC 164)]         (iii)   The Court has to scrutinize the dying declaration  carefully and must ensure that the declaration is not the  result of tutoring, prompting or imagination. The deceased had  an opportunity to observe and identify the assailants and was  in a fit state to make the declaration. [See K. Ramachandra  Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994)]

       (iv)     Where dying declaration is suspicious, it should  not be acted upon without corroborative evidence. [See  Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]         (v)     Where the deceased was unconscious and could  never make any dying declaration the evidence with regard to  it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982  SC 1021)]         (vi)    A dying declaration which suffers from infirmity  cannot form the basis of conviction. [See Ram Manorath and  Ors. v. State of U.P. (1981 (2) SCC 654)         (vii)   Merely because a dying declaration does contain the  details as to the occurrence, it is not to be rejected. [See State  of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981  SC 617)]         (viii)  Equally, merely because it is a brief statement, it is  not to be discarded. On the contrary, the shortness of the  statement itself guarantees truth. [See Surajdeo Oza and Ors.  v. State of Bihar (AIR 1979 SC 1505).         (ix)    Normally the Court in order to satisfy whether  deceased was in a fit mental condition to make the dying  declaration look up to the medical opinion. But where the eye- witness said that the deceased was in a fit and conscious state  to make the dying declaration, the medical opinion cannot  prevail. [See Nanahau Ram and Anr. v. State of Madhya  Pradesh (AIR 1988 SC 912)].         (x)     Where the prosecution version differs from the  version as given in the dying declaration, the said declaration  cannot be acted upon. [See State of U.P. v. Madan Mohan and  Ors. (AIR 1989 SC 1519)].         (xi)    Where there are more than one statement in the  nature of dying declaration, one first in point of time must be  preferred. Of course, if the plurality of dying declaration could  be held to be trustworthy and reliable, it has to be accepted.  [See Mohanlal Gangaram Gehani v.State of Maharashtra (AIR  1982 SC 839)]   

12.     In the light of the above principles, the acceptability of  alleged dying declaration in the instant case has to be  considered. The dying declaration is only a piece of untested  evidence and must like any other evidence, satisfy the Court  that what is stated therein is the unalloyed truth and that it is  absolutely safe to act upon it. If after careful scrutiny the  Court is satisfied that it is true and free from any effort to  induce the deceased to make a false statement and if it is  coherent and consistent, there shall be no legal impediment to  make it basis of conviction, even if there is no corroboration.  [See Gangotri Singh v. State of U.P.{JT 1992 (2)SC 417),  Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993 (5)  SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT  1994 (3) SC 232),  State of Rajasthan v. Kishore (JT 1996 (2)  SC 595) and Muthu Kutty and Anr. v. State by Inspector of  Police, T.N. (2005 (9) SCC 113).

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13.     This brings us to the crucial question as to which was  the appropriate provision to be applied.  It is stated that the  occurrence took place at night with practically no light and  therefore, no identification would have been possible.  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

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                                                               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.     

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

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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 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

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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 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

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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.     Though the occurrence took place at night, the existence  of light, however, feeble has been established.  The accused  and deceased were well known to each other.  So identification  by deceased, since he was seeing him from close quarters, is  possible. If persons are known to each other, from the manner  of walk, talking and peculiar features of gait identification is  possible.  The courts below have rightly held that deceased  could have easily identified the accused persons.               27.     Considering the fact that the occurrence took place in the  night in almost dark conditions with feeble light and attack  was made indiscriminately, the appropriate conviction would  be under Section 304 Part I, IPC. Custodial sentence of 10  years would meet the ends of justice.  

28.      The appeal is allowed to the aforesaid extent.