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PETITIONER: VIRSA SINGH.

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 11/03/1958

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN IMAM, SYED JAFFER GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  465            1958 SCR 1495

ACT: Criminal  Trial--Culpable  homicide  amounting  to  murder-- Prosecution   to   Prove-Presence  and  Nature   of   Injury -Intention  to cause that Particular Injury, which  was  not accidental  or  unintentional and was  sufficient  to  cause death  in the ordinary (course of nature--Indian Penal  Code (Act XLII of 1860), s. 300, 3rdly.

HEADNOTE: The accused thrust a spear into the abdomen of ,he deceased. This injury caused his death.  In the opinion of the  doctor the  injury  was sufficient to cause death in  the  ordinary course  of nature.  It was found by the Sessions judge  that the  accused intended to cause grievous hurt only.   In  his opinion however the third clause Of S. 300 Indian Penal Code applied.  He accordingly convicted and sentenced the accused under  S. 302 India, Penal Code.  The High Court upheld  the conviction,  It was argued that the third clause Of  s.  300 Indian  Penal Code did not apply as it was not  proved  that the accused intended to inflict a 1496 bodily  injury  that was sufficient to cause  death  in  the ordinary course of nature as s. 300 Indian Penal Code  third clause states, " If it is done 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 Held,  that the prosecution must prove the following  before it  can  bring a case under s. 300 Indian Penal  Code  third clause. (1)  It  must establish, quite objectively,  that  a  bodily injury is present. (2)  The  nature  of the injury must be  proved;  these  are purely objective investigations. (3)  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. (4)  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.

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This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. The third clause of S. 300 Indian Penal Code consists of two parts.   Under the first part it must be proved  that  there was  an intention to inflict the injury that is found to  be present and under the second part it must be proved that the injury  was sufficient in the ordinary course of  nature  to cause death.  The words " and the bodily injury intended  to be  inflicted " are merely descriptive.  All this means  is, that  it is not enough to prove that the injury found to  be present is sufficient to cause death in the ordinary  course of  nature  ; it must in addition be shown that  the  injury found to be present was the injury intended to be inflicted. Whether  it  was sufficient to cause death in  the  ordinary course of nature is a matter of inference or deduction  from the  proved  facts about the nature of the  injury  and  has nothing to do with the question of intention.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90  of 1957. Appeal  by special leave from the judgment and  order  dated November  21,  1956, of the Punjab High  Court  in  Criminal Appeal No. 326 of 1956 arising out of the judgment and order dated  June 26, 1956, of the Court of the Sessions Judge  at Ferozepore in Sessions Case No. 8 of 1956. Jai  Gopal Sethi and R. L. Kohli, for the appellant.  N.  S. Bindra  and T. M. Sen, for the respondent. 1958.   March 11.   The Judgment of the Court was  delivered by 1497 BOSE  J.-The  appellant Virsa Singh has  been  sentenced  to imprisonment for life under s. 302 of the Indian Penal  Code for  the murder of one Khem Singh.  He was  granted  special leave to appeal by this Court but the leave is limited to "  the question that on the finding accepted by  the  Punjab High Court what offence is made out as having been committed by the petitioner." The appellant was tried with five others under sss.  302/49, 324/149 and 323/149 Indian Penal Code.  He was also  charged individually under s. 302. The other, were acquitted of the murder charge by the  first Court  but  were convicted under ss. 326, 324 and  323  read with s. 149, Indian Penal Code.  On appeal to the High Court they were all acquitted. The appellant was convicted by the first Court under s.  302 and  his  conviction and sentence were upheld  by  the  High Court. There was only one injury on Khem Singh and both Courts  are agreed  that the appellant caused it.  It was caused as  the result  of a spear thrust and the doctor who  examined  Khem Singh, while he was still alive, said that it was "  a punctured wound 2" x 1/2"  transverse in  direction  on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that " Three coils of intestines were coming out of the wound." The incident occurred about 8 p. m. on July 13, 1955.   Khem Singh died about 5 p. m. the following day. The doctor who conducted the postmortem described the injury as- " an oblique incised stitched wound 21/2" on the lower  part of left side of belly, 13" above the left inguinal ligament.

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The injury was through the whole thickness of the  abdominal wall.   Peritonitis was present and there was digested  food in that cavity.  Flakes of pus were sticking round the small intestines 1498 and  there  were six cuts......... at  various  places,  and digested food was flowing out from three cuts." The  doctor  said that the injury was  sufficient  to  cause death in the ordinary course of nature. The  learned Sessions Judge found that the appellant was  21 or 22 years old and said- " When the common object of the assembly seems to have  been to  cause grievous hurts only, I do not suppose Virsa  Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful  blow, which   ultimately  caused  his  death.   Peritonitis   also supervened  and that hastened the death of Khem Singh.   But for  that Khem Singh may perhaps not have died or  may  have lived a little longer." Basing  on those facts, he said that the case fell under  s. 300,  3rdly and so he convicted under s. 302,  Indian  Penal Code. The  learned  High Court Judges considered  that  the  whole affair  was sudden and occurred on a chance meeting  ".  But they  accepted the finding that the appellant inflicted  the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one. It  was argued with much circumlocution that the  facts  set out  above do not disclose an offence of murder because  the prosecution  has not proved that there was an  intention  to inflict  a bodily injury that was sufficient to cause  death in  the ordinary course of nature.  Section 300,  3rdly  was quoted: " If it is done 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." It  was  said that the intention that the  section  requires must  be related, not only to the bodily  injury  inflicted, but  also to the clause, "and the bodily injury intended  to be inflicted is sufficient in the ordinary course of  nature to cause death." This  is  a favourite argument in this kind of case  but  is fallacious.   If there is an intention to inflict an  injury that is sufficient to cause death in the ordinary 1499 course of nature, then the intention is to kill and in  that event,  the "thirdly " would be unnecessary because the  act would fall under the first part of the section, namely- "  If the act by which the death is caused is done with  the intention of causing death." In  our  opinion,  the  two  clauses  are  disjunctive   and separate.  The first is subjective to the offender: "If  it is done with the intention of causing bodily  injury to any person." It  must, of course, first be found that bodily  injury  was caused  and  the nature of the injury must  be  established, that is to say, whether the injury is on the leg or the  arm or  the stomach, how deep it penetrated, whether  any  vital organs  were cut and so forth.  These are  purely  objective facts and leave no room for inference or deduction: to  that extent  the enquiry is objective; but when it comes  to  the question  of intention, that is subjective to  the  offender and it must be proved that he had an intention to cause  the bodily injury that is found to be present.

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Once that is found, the enquiry shifts to the next clause- "  and  the  bodily  injury  intended  to  be  inflicted  is sufficient in the ordinary course of nature to cause death." The first part of this is descriptive of the earlier part of the  section, namely, the infliction of bodily  injury  with the  intention  to  inflict  it, that  is  to  say,  if  the circumstances  justify an inference that a  man’s  intention was only to inflict a blow on the lower part of the leg,  or some  lesser blow, and it can be shown that the blow  landed in  the  region of the heart by accident, then,  though  all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved.  In that case, the first part of the clause does not come  into  play.  But once it is proved that there  was  an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining 190 1500 " and the bodily injury intended to be inflicted " is merely descriptive.  All it means is that it is not enough to prove that  the injury found to be present is sufficient to  cause death in the ordinary course of nature; it must in  addition be  shown that the injury is of the kind that  falls  within the  earlier  clause, namely, that the injury  found  to  be present  was the injury that was intended to  be  inflicted. Whether  it  was sufficient to cause death in  the  ordinary course of nature is a matter of inference or deduction  from the  proved  facts about the nature of the  injury  and  has nothing to do with the question of intention. In  considering  whether the intention was  to  inflict  the injury found to have been inflicted, the enquiry  necessarly proceeds  on broad lines as, for example, whether there  was an  intention to strike at a vital or a dangerous spot,  and whether  with sufficient force to cause the kind  of  injury found  to  have  been  inflicted.  It  is,  of  course,  not necessary  to  enquire  into  every  last  detail  as,   for instance,  whether the prisoner intended to have the  bowels fall  out, or whether he intended to penetrate the liver  or the  kidneys  or  the heart.  Otherwise, a man  who  has  no knowledge  of anatomy could never be convicted, for,  if  he does  not know that there is a heart or a kidney or  bowels, be  cannot  be  said to have intended to  injure  them.   Of course,  that is not the kind of enquiry.  It is  broadbased and  simple and based on common sense: the kind  of  enquiry that " twelve good men and true could readily appreciate and understand. To put it shortly, the prosecution must prove the  following facts before it can bring a case under s. 300, 3rdly " ; 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. 1501 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. Once these four elements are established by the  prosecution

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(and,   of  course,  the  burden  is  on   the   prosecution throughout)  the offence is murder under s. 300, 3rdly.   It does not matter that there was no intention to cause  death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary  course  of  nature (not that  there  is  any  real distinction between the two).  It does not even matter  that there  is  no  knowledge that an act of that  kind  will  be likely  to  cause death.  Once the intention  to  cause  the bodily  injury actually found to be present is  proved,  the rest  of  the  enquiry  is purely  objective  and  the  only question  is  whether,  as  a  matter  of  purely  objective inference,  the injury is sufficient in the ordinary  course of  nature  to  cause death.  No one has a  licence  to  run around  inflicting  injuries that are  sufficient  to  cause death  in the ordinary course of nature and claim that  they are not guilty of murder.  If they inflict injuries of  that kind,  they  must face the consequences; and they  can  only escape  if it can be shown, or reasonably deduced  that  the injury was accidental or otherwise unintentional. We  were  referred  to a decision of Lord Goddard  in  R  v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that  particular intent must be proved.  Of course it must, and of course  it must  be proved by the prosecution.  The only question  here is, what is the extent and nature of the intent that s.  300 3rdly requires, and how is it to be proved ? The  learned  counsel  for the appellant next  relied  on  a passage where the learned Chief Justice says that: (1)  [1947] 1 All E. R. 813, 816. 1502 "if, on the totality of the evidence, there is room for more than  one  view as to the intent of the prisoner,  the  jury should  be directed that it is for the prosecution to  prove the  intent to the jury’s satisfaction, and if, on a  review of the whole evidence, they either think that the intent did not  exist or they are left in doubt as to the  intent,  the prisoner is entitled to be acquitted." We  agree  that that is also the law in India.   But  so  is this.   We  quote  a few sentences  earlier  from  the  same learned judgment: "No  doubt,  if  the prosecution prove an  act  the  natural consequences  of  which  would be a certain  result  and  no evidence  or  explanation is given, then a jury  may,  on  a proper direction, find that the prisoner is guilty of  doing the act with the intent alleged." That   is  exactly  the  position  here.   No  evidence   or explanation is given about why the appellant thrust a  spear into  the  abdomen of the deceased with such force  that  it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from  cuts in three places.  In the absence of evidence, or  reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate  that far  into  the  body,  or to indicate that  his  act  was  a regrettable  accident  and that he  intended  otherwise,  it would  be  perverse to conclude that he did  not  intend  to inflict  the  injury  that  he did.   Once  that  intent  is established (and no other conclusion is reasonably  possible in this case, and in any case it is a question of fact), the rest  is  a  matter for  objective  determination  from  the medical and other evidence about the nature and  seriousness of the injury. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan (1) where Beaman J. says that-

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" where death is caused by a single blow, it is always  much more  difficult  to  be absolutely certain  what  degree  of bodily injury the offender intended." With due respect to the learned Judge he has linked (1)  (1917) I. L. R. 41 Bom. 27,29. 1503 up  the intent required with the seriousness of the  injury, and  that,  as  we  have shown,  is  not  what  the  section requires.  The two matters are quite separate and  distinct, though  the evidence about them may sometimes  overlap.  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 be  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.- But whether the  intention is there or not is one of fact and not one of law.   Whether the  wound  is  serious or otherwise, and  if  serious,  how serious, is a totally separate and distinct question and has nothing  to  do  with  the  question  whether  the  prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury.  For example, if it  can be  proved, or if the totality of the circumstances  justify an inference, that the prisoner only intended a  superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder.  But that is not because the prisoner did not intend  the  injury  that he intended to inflict  to  be  as serious as it turned out to be but because he did not intend to inflict the injury in question at all.  His intention  in such a case would be to inflict a totally different  injury. The difference is not One of law but 1504 one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by  calling in  aid all reasonable inferences of fact in the absence  of direct testimony.  It is not one for guess-work and fanciful conjecture.        The appeal is dismissed.                     Appeal dismissed.