08 December 2004
Supreme Court


Case number: Crl.A. No.-001456-001456 / 2004
Diary number: 21112 / 2003



CASE NO.: Appeal (crl.)  1456 of 2004


RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 08/12/2004



(Arising Out of S.L.P. (Crl.) No. 5080 of 2003


       Leave granted.

       Appellant calls in question legality of the judgment rendered by  a Division Bench of the Madras High Court confirming his conviction for  offence punishable under Section 302 of the Indian Penal Code, 1860 (in  short ’IPC’), and sentence of imprisonment for life as awarded by the  learned  Sessions Judge, Kanyakumari.  

       Background facts as unfolded during trial by the prosecution are  essentially as follows:           One Selvamani Nadar (hereinafter referred to as the ’deceased’)  was having industry and he employed a number of girls.  The accused  used to make fun of the girls/workers outside the factory and this was  objected to by the deceased several times.  On that score, there had  been enmity between the deceased and the accused.

       At about 8.30 p.m. on 1.5.1990, PW-1, PW-2 and one Murugesan were  standing in front of Bensam Ground, south of Kulachal-Nagercoil Mail  Road. The accused was sitting on the eastern side of a culvert. There  was a tube light burning and hence there was enough light at that  place.  At that time, the deceased, who came in a bicycle proceeding  from east to west, took a turn towards south.  The accused rushed to  the deceased saying "you die, old man" and hit him with a stick (M.O.1)  on his head. The deceased sustained injuries and there was profuse  bleeding. PW-1, PW-2 and Murgesan immediately went near him and when  the accused saw them coming near ran towards west, leaving the weapon  viz., M.O.1 stick.  Thereafter, PW-1, PW-2, Murugesan and the wife of  the deceased took the deceased to the Government Hospital at Kulachal.   After giving first aid to the deceased, the doctors in the said  hospital advised to take the deceased to Nagercoil for further  treatment.  The aforementioned persons thereafter took the deceased to  Nagercoil and at the Government Hospital, Kottar, the deceased was  treated by Doctor Rani Fnoch (PW-6).   

       The doctor found several injuries.  PW-1 narrated the incident to  the Head Constable (PW-10) at the police station who recorded the first  information report (Ex.P-11). Same was dispatched to the Court of



Judicial Magistrate.   Assistant Surgeon, Government Hospital (PW-7)  treated the deceased who breathed his last at about 1.25 a.m. on  2.5.1990.  On receiving information about the death the case which was  originally registered under Sections 307, 323 and 341 IPC was  registered under Section 302 IPC, and necessary information was sent to  the Court of Judicial Magistrate.  On postmortem 6 injuries were  noticed, out of which 3 were external and the rest were internal.   Injuries 1 and 2 as noticed were abrasions but the fatal injury i.e.  injury No.3 was stated to be 4" linear oblique sutured wound over the  right parietal scalp.  The doctor opined that the injury was sufficient  in ordinary course of nature to cause death.  On 4.5.1990 the accused  was arrested and after completion of investigation the charge sheet was  placed.  The accused pleaded innocence. The Trial Court found that the  evidence of eye witnesses PWs. 1, 2 and 3 were cogent and credible.   The accused used to tease girls working in the factory of the deceased.  When the deceased objected to the same, there was some misunderstanding  and at the time of occurrence when the deceased was coming by bicycle,  the accused rushed towards him and attacked him; resulting the fatal  injury.  When the eye witnesses rushed to help the deceased, the  accused ran away.  Placing reliance on the evidence and considering the  entire material on record the trial Court found the accused guilty and  convicted as aforesaid. An appeal was preferred before the High Court  questioning the conviction and sentence.  Before the High Court, it was  urged that PWs. 1 and 2 were related to the deceased, and PW-3 was a  chance witness and no credence should be put on their evidence. The  High Court did not accept the plea and finding the analysis of evidence  by the trial Court to be in order, upheld the conviction and sentence.

       In support of the appeal, learned counsel for the appellant  submitted that the evidence of PW-3 who was treated as an independent  witness was that a chance witness and his evidence should not have been  relied upon. It is further submitted that even if the prosecution  version is accepted in toto no case for application of Section 302 IPC  has been made out.  Only one blow with a small stick was given.  

       Per contra, learned counsel for the respondent-State supported  the judgment of the Courts below and submitted that the judgments are  well reasoned and no interference is called for.   

Coming to the plea of the accused that PW-3 was ’chance witness’  who has not explained how he happened to be at the alleged place of  occurrence, it has to be noted that the said witness was an independent  witness. There was not even a suggestion to the witness that he had any  animosity towards the accused. In a murder trial by describing the  independent witnesses as ’chance witnesses’ it cannot be implied  thereby that their evidence is suspicious and their presence at the  scene doubtful. Murders are not committed with previous notice to  witnesses; soliciting their presence. If murder is committed in a  dwelling house, the inmates of the house are natural witnesses. If  murder is committed in a street, only passersby will be witnesses.  Their evidence cannot be brushed aside or viewed with suspicion on the  ground that they are mere ’chance witnesses’. The expression ’chance  witness’ is borrowed from countries where every man’s home is  considered his castle and everyone must have an explanation for his  presence elsewhere or in another man’s castle. It is quite unsuitable  an expression in a country where people are less formal and more  casual, at any rate in the matter explaining their presence. Therefore,  there is no substance in the plea that PW-3’s evidence which is clear  and cogent is to be discarded.      

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 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.

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 -


(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





(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.     

Clause (b) of Section 299 corresponds with clauses (2) and (3) of  Section 300.  The distinguishing feature of the mens rea requisite  under clause (2) is the knowledge possessed by the offender regarding  the particular victim being in such a peculiar condition or state of  health that the internal harm caused to him is likely to be fatal,  notwithstanding the fact that such harm would not in the ordinary way  of nature be sufficient to cause death of a person in normal health or  condition.  It is noteworthy that the ’intention to cause death’ is not  an essential requirement of clause (2).  Only the intention of causing  the bodily injury coupled with the offender’s knowledge of the  likelihood of such injury causing the death of the particular victim,  is sufficient to bring the killing within the ambit of this clause.   This aspect of clause (2) is borne out by illustration (b) appended to  Section 300.

Clause (b) of Section 299 does not postulate any such knowledge  on the part of the offender.  Instances of cases falling under clause  (2) of Section 300 can be where the assailant causes death by a fist  blow intentionally given knowing that the victim is suffering from an  enlarged liver, or enlarged spleen or diseased heart and such blow is  likely to cause death of that particular person as a result of the  rupture of the liver, or spleen or the failure of the heart, as the  case may be.  If the assailant had no such knowledge about the disease  or special frailty of the victim, nor an intention to cause death or  bodily injury sufficient in the ordinary course of nature to cause  death, the offence will not be murder, even if the injury which caused  the death, was intentionally given. In clause (3) of Section 300,  instead of the words ’likely to cause death’ occurring in the  corresponding clause (b) of Section 299, the words "sufficient in the  ordinary course of nature" have been used.  Obviously, the distinction  lies between a bodily injury likely to cause death and a bodily injury  sufficient in the ordinary course of nature to cause death. The  distinction is fine but real and if overlooked, may result in  miscarriage of justice.  The difference between clause (b) of Section  299 and clause (3) of Section 300 is one of the degree of probability  of death resulting from the intended bodily injury.  To put it more  broadly, it is the degree of probability of death which determines  whether a culpable homicide is of the gravest, medium or the lowest  degree.  The word ’likely’ in clause (b) of Section 299 conveys the  sense of probable as distinguished from a mere possibility.  The words  "bodily injury.......sufficient in the ordinary course of nature to  cause death" mean that death will be the "most probable" result of the  injury, having regard to the ordinary course of nature.



For cases to fall within clause (3), it is not necessary that the  offender intended to cause death, so long as the death ensues from the  intentional bodily injury or injuries sufficient to cause death in the  ordinary course of nature.  Rajwant and Anr.  v. State of Kerala, (AIR  1966 SC 1874) is an apt illustration of this point.

In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian  Bose, J. speaking for the Court, explained the meaning and scope of  clause (3). It was observed that the prosecution must prove the  following facts before it can bring a case under Section 300,  "thirdly".  First, it must establish quite objectively, that a bodily  injury is present; secondly the nature of the injury must be proved.   These are purely objective investigations.  Thirdly, it must be proved  that there was an intention to inflict that particular injury, that is  to say, that it was not accidental or unintentional or that some other  kind of injury was intended.  Once these three elements are proved to  be present, the enquiry proceeds further, and fourthly it must be  proved that the injury of the type just described made up of the three  elements set out above was sufficient to cause death in the ordinary  course of nature.  This part of the enquiry is purely objective and  inferential and has nothing to do with the intention of the offender.

The ingredients of clause "Thirdly" of Section 300, IPC were  brought out by the illustrious Judge in his terse language as follows:

"To put it shortly, the prosecution must prove the  following facts before it can bring a case under  Section 300, "thirdly".

First, it must establish, quite objectively, that a  bodily injury is present.

Secondly, the nature of the injury must be proved.   These are purely objective investigations.

Thirdly, it must be proved that there was an  intention to inflict that particular bodily injury,  that is to say that it was not accidental or  unintentional, or that some other kind of injury was  intended. Once these three elements are proved to be present,  the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the  type just described made up of the three elements set  out above is sufficient to cause death in the  ordinary course of nature.  This part of the enquiry  is purely objective and inferential and has nothing  to do with the intention of the offender."

The learned Judge explained the third ingredient in the following  words (at page 468):

"The question is not whether the prisoner intended to  inflict a serious injury or a trivial one but whether  he intended to inflict the injury that is proved to  be present.  If he can show that he did not, or if  the totality of the circumstances justify such an  inference, then of course, the intent that the  section requires is not proved.  But if there is  nothing beyond the injury and the fact that the  appellant inflicted it, the only possible inference  is that he intended to inflict it. Whether he knew of  its seriousness or intended serious consequences, is



neither here or there.  The question, so far as the  intention is concerned, is not whether he intended to  kill, or to inflict an injury of a particular degree  of seriousness but whether he intended to inflict the  injury in question and once the existence of the  injury is proved the intention to cause it will be  presumed unless the evidence or the circumstances  warrant an opposite conclusion."

These observations of Vivian Bose, J. have become locus  classicus.  The test laid down by Virsa Singh’s case (supra) for the  applicability of clause "Thirdly" is now ingrained in our legal system  and has become part of the rule of law.  Under clause thirdly of  Section 300 IPC, culpable homicide is murder, if both the following  conditions are satisfied: i.e. (a) that the act which causes death is  done with the intention of causing death or is done with the intention  of causing a bodily injury; and (b) that the injury intended to be  inflicted is sufficient in the ordinary course of nature to cause  death.  It must be proved that there was an intention to inflict that  particular bodily injury which, in the ordinary course of nature, was  sufficient to cause death, viz., that the injury found to be present  was the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh’s case, even  if the intention of accused was limited to the infliction of a bodily  injury sufficient to cause death in the ordinary course of nature, and  did not extend to the intention of causing death, the offence would be  murder.  Illustration (c) appended to Section 300 clearly brings out  this point.

Clause (c) of Section 299 and clause (4) of Section 300 both  require knowledge of the probability of the act causing death.  It is  not necessary for the purpose of this case to dilate much on the  distinction between these corresponding clauses. It will be sufficient  to say that clause (4) of Section 300 would be applicable where the  knowledge of the offender as to the probability of death of a person or  persons in general as distinguished from a particular person or persons  \026 being caused from his imminently dangerous act, approximates to a  practical certainty.  Such knowledge on the part of the offender must  be of the highest degree of probability, the act having been committed  by the offender without any excuse for incurring the risk of causing  death or such injury as aforesaid.

The above are only broad guidelines and not cast iron  imperatives. In most cases, their observance will facilitate the task  of the Court. But sometimes the facts are so intertwined and the second  and the third stages so telescoped into each other that it may not be  convenient to give a separate treatment to the matters involved in the  second and third stages.

The position was illuminatingly highlighted by this Court in  State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC  382), Abdul Waheed Khan @ Waheed and Ors.   v. State of Andhra Pradesh  (JT 2002 (6) SC 274), and Augustine Saldanha v. State of Karnataka  (2003 (10) SCC 472).

       Keeping the aforesaid legal principles in view, the factual  position is to be examined. It cannot be said as a rule of universal  application that whenever one blow is given Section 302 IPC is ruled  out. It would depend upon the facts of each case. The weapon used, size  of the weapon, place where the assault took place, background facts  leading to the assault, part of the body where the blow was given are  some of the factors to be considered. In the instant case admittedly



one blow was given with a small stick, and the place where the assault  took place was dimly lit. Inevitable conclusion is that the case is  covered by Section 304 Part I IPC and not Section 302 IPC.  The  conviction is accordingly altered.  Custodial sentence of 10 years  would meet the ends of justice.

       The appeal is allowed to the aforesaid extent.