Karnataka High Court
Shamshuddin S/O. Hazisab Savanur vs The State Of Karnataka on 24 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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CRL.A.No.100217 OF 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24th DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CRIMINAL APPEAL NO.100217 OF 2022
BETWEEN
1. SHAMSHUDDIN, S/O. HAZISAB SAVANUR,
AGE ABOUT 25 YEARS,
OCC: FABRICATION WORK,
R/O. NEAR URDU SCHOOL,
SADARSOFA, OLD-HUBLI,
NOW AT: BEHIND N.A. NAGAR
MASJID OLD HUBBALLI,
HUBBALLI-580020.
2. ZUBERAHMED @ HAZI,
S/O. ABDULKHADAR JAILANI KALBURGI,
AGE ABOUT 25 YEARS,
OCC: FABRICATION WORK,
R/O. PATHAN GALLI, SADAR SOFA,
OLD-HUBLI, HUBBALLI-580020.
...APPELLANTS
(BY SRI. L.S.SULLAD, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD, THROUGH
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CRL.A.No.100217 OF 2022
KASABAPETH POLICE STATION,
HUBBALLI.
....RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION ORDER DATED
25.03.2022 AND SENTENCE DATED 28.03.2022 PASSED BY
THE V-ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, SITTING AT HUBBALLI IN S.C.NO.76/2020 FOR THE
OFFENCES PUNISHABLE U/S 302 R/W 34 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.08.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS
DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)
This appeal by the accused Nos.1 and 2 in S.C.76 of 2020
is directed against the impugned judgment dated 25.03.2022
passed by the V Additional District and Sessions Judge,
Dharwad, sitting at Hubballi, whereby the appellants/accused
Nos.1 and 2 were convicted for the offence punishable under
Section 302 read with Section 34 IPC and consequently,
CRL.A.No.100217 OF 2022
sentenced to undergo rigorous imprisonment for life and pay
fine of Rs.75,000/- each and, on default, to undergo two years'
imprisonment.
2. The material on record discloses that, on
11.03.2020, P.W.1, Mehaboobsab Ibrahimsab Bikanbai, filed a
complaint at around 2.15 p.m. reporting that his son
Shaabuddin Bikanbai had been murdered by appellants/accused
Nos.1 and 2 at around 12.30 p.m. and requested the Police
authorities to take action against the appellants for murdering
his son. In pursuance of the said complaint, the police
authorities registered a FIR in Crime No.12/2020 against the
appellants for alleged offences punishable under Section 323,
324, 341, 120B, 302, 504 r/w Section 34 of IPC. On
12.03.2020, the appellants/accused were arrested and have
been in judicial custody ever since that day. After
investigation, the police authorities filed a charge sheet before
the learned Magistrate who took cognizance of the offences and
committed the entire case before the Sessions Court (Trial
Court) since the offence punishable under Section 302 was
triable exclusively by the Sessions Court. After committal, the
instant case in S.C. 76/2020 was registered against the
CRL.A.No.100217 OF 2022
appellants and posted before the Trial Court who came to the
conclusion that there was sufficient material to frame charges
against the appellant who pleaded "not guilty" and as such, the
Trial Court proceeded to frame charges under which the
appellants were charged with the offences punishable under
Section 302 r/w 34 of IPC.
3. The respondent-prosecution examined 24 witnesses
as P.W.1 to P.W.24 and documentary evidence at Exs.P.1 to
P.56 and material objects at MO-1 to MO-15 were produced
and marked by the prosecution. The appellants/accused
contested the case and cross-examined the witnesses and their
statement under Section 313 Cr.P.C. was recorded in which the
accused denied the case of the prosecution and stated that the
deceased was their friend and was working as a painter and
while doing painting work in a bakery near Ishwar Nagar on
11.03.2020, the deceased slipped and fell on iron rods as a
result of which he sustained injuries and was declared dead
when he was taken to the hospital. The accused contended that
since they refused to pay compensation to P.W.1, the father of
the deceased, he colluded with the police authorities and filed
CRL.A.No.100217 OF 2022
the instant case which was false and the appellants/accused
were entitled to be acquitted.
4. The Trial Court framed the following points for
consideration:
1) Whether the prosecution proved its case beyond all
reasonable doubt that the accused No.1 and 2 being
enraged from the act of the deceased, who stared at them
on the previous night, in this regard there was a quarrel,
which was pacified with the intervention of the public. For
which the accused No.1 and 2 had a plan to commit
murder of the deceased, in that background on 11.3.2020
at 11.00 a.m. they came to Pathangalli circle, at 12.15
p.m. even the deceased Shabuddin had also came near
Pathangalli tea stall, by that time both the accused have
picked up a quarrel with him. The deceased with intend to
assault on them brought club from the nearby shamiyan
shop. But accused No.1 and 2 held the deceased tightly.
By that time both the accused with intend to commit
murder also by knowing the fact that the intended injury
inflicting on the deceased are sufficient to cause his death
have indiscriminately stabbed all over the body and
caused 15 injuries, immediately though the deceased has
been shifted to the hospital for treatment, there the
doctor declared him as brought dead, thus both the
accused have committed the offence punishable
u/Sec.302 r/w.Sec. 34 of I.P.C ?
2) What order?
CRL.A.No.100217 OF 2022
5. After hearing the parties, the Trial Court proceeded
to pass the impugned judgment convicting the
appellants/accused for the offences punishable under Section
302 r/w Section 34 IPC and sentenced them to undergo life
imprisonment and to pay a fine of Rs.75,000/- each. Aggrieved
by the impugned judgment, the appellants/accused are before
this Court by way of the present appeal.
6. Heard Sri. L.S.Sullad, learned counsel appointed as
Amicus Curiae vide order dated 14.02.2025 for the
appellants/accused, and the learned Additional State Public
Prosecutor for the respondent-State and perused the material
on record.
7. A perusal of the material on record will indicate that
the Trial Court placed reliance upon the evidence of P.W.1,
father of the deceased, P.W.3, the brother of the deceased, and
P.W.4, the brother-in-law of the deceased in order to come to
the conclusion that the accused had committed the alleged
offence of stabbing the deceased at about 12.15 p.m. on
11.03.2020; so also, the Trial Court considered the evidence of
P.Ws.15 and 16, alleged independent eyewitnesses as well as
CRL.A.No.100217 OF 2022
the evidence of the Investigating Officer examined as P.W.24 in
order to hold that their evidence supported the case of the
prosecution that the appellants-accused had murdered the
deceased. Further, the Trial Court also came to the conclusion
that the defence put forth by the appellants that they were not
guilty of the alleged offences but the deceased who was
working as a Painter had fallen down on his own on the iron
rods and had expired was not substantiated by the accused
persons.
8. In this context, a perusal of the impugned judgment
will indicate that insofar as the accused allegedly quarrelling
with the deceased with whom they earlier had a quarrel the
previous day i.e., on 10.03.2020 in the evening when the
deceased is said to have given a "wild look/cold stare" to the
accused who once again quarrelled with the deceased the next
day i.e., the date of the incident that took place at around
12.15 p.m. and that the accused stabbed the deceased, the
trial Court took into account the fact that there were no mutual
inconsistencies or discrepancies in the evidence of P.W.1,
P.W.3, P.W.4, P.W.15 and P.W.16 so as to discredit or impeach
their testimonies which were also corroborated by the other
CRL.A.No.100217 OF 2022
material on record including the recovery of the murder
weapons MO.6 and MO.7 from the accused persons, inquest
panchanama, post-mortem report, FSL report, etc. and other
material on record. Under these circumstances, the Trial Court
came to be conclusion that the prosecution had proved its case
beyond reasonable doubt that the accused were guilty of
offences punishable under Section 302 r/w Section 34 IPC.
9. Before adverting to the aforesaid evidence, it would
be necessary to refer to the other material on record; P.W.2 is
the mother of the deceased and states that by the time she
reached the spot along with her husband, P.W.1 (complainant)
and their son P.W.3, the deceased had been killed and was
lying on the ground. P.W.2 is not an eyewitness and except
stating that someone showed her a video recording of the
incident, her evidence cannot be relied upon in order to prove
the guilt of the accused.
10. P.W.5 is a mahazar witness and not an eyewitness,
while P.W.6 who is cited as an eyewitness turned hostile and
did not support the case of the prosecution. So also, P.Ws.7, 8,
9, 10, 11 and 12 also turned hostile and did not support the
CRL.A.No.100217 OF 2022
prosecution case. P.Ws.13, 14 and 17 are also not
eyewitnesses and merely state that they heard about the
quarrel and the alleged murder of the deceased and even their
evidence is not sufficient to prove the guilt of the accused.
P.Ws.18 to 23 are prosecution witnesses comprising of Police
Officials, mahazar witnesses, doctors and FSL Officer, etc., all
of whom are obviously not eyewitnesses but their evidence
would indicate that the demise of the deceased was on account
of an homicidal death. At any rate, a perusal of the material on
record will clearly indicate that the prosecution had established
that it was a case of homicidal death and the impugned
judgment and decree and the findings recorded by the Trial
Court in this regard are correct and proper and the same do not
warrant interference by this Court in the present appeal.
11. The Trial Court placed reliance upon the eyewitness
viz., P.W.1, the father of the deceased, P.W.3-brother of the
deceased, P.W.4- brother-in-law of the deceased as well as
P.Ws.15 and 16 - independent eyewitnesses in order to hold
that the accused persons were guilty of stabbing the deceased
on the date of the incident. In this context, it is pertinent to
note that while P.W.1 states in his evidence that after hearing
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CRL.A.No.100217 OF 2022
the news about the quarrel between his son (deceased) and the
accused at around 11.45 a.m. on 11.03.2020, P.W.1
immediately ran to the spot since he could not find any vehicle
and witnessed the incident. P.W.1 also stated that the previous
night his son (the deceased) returned home at 11.00 p.m. and
informed P.W.1 about the quarrel with the accused. Similarly,
P.W.3 and P.W.4 who are none other than the brother and
brother-in-law of the deceased also state that they received
information about the quarrel and rushed to the spot separately
at about 12.00 noon by motorcycle and witnessed the incident.
So also, P.W.15 and 16 state that they were sitting in the tea
stall at the time of the incident which occurred just outside the
said tea stall.
12. Though learned counsel for the appellant attempted
to contend that there are certain discrepancies and
inconsistencies in the evidence of P.Ws.1, 3, 4, 15 and 16 as
regards the occurrence of the incident, in our considered
opinion that the evidence of the aforesaid five witnesses is
consistent with the allegations made by the prosecution that
the accused had stabbed the deceased by using the murder
weapons. A perusal of the evidence of these five witnesses is
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CRL.A.No.100217 OF 2022
sufficient to come to the conclusion that the Trial Court was
fully justified in holding that the accused had stabbed the
deceased at around 12-12.30 p.m. on 11.03.2020 thereby
resulting in his demise. The said findings recorded by the Trial
Court are as under:
55. In this case PW-1, PW-3, PW-4, PW-15
and PW-16 have categorically deposed that on
11.3.2020 at 12.30 noon the accused No.1 and 2 by
using the knives have repeatedly stabbed on the
deceased. Though learned counsel for the accused
had chosen to cross examine them in quite lengthly
but nothing contrary to their evidence has been
elicited in their mouth to discredit their evidence. Of
course learned counsel for the accused is right that
PW-1, 2 and 4 are relatives. But there is no bar to
disbelieve the evidence of the relative witnesses,
unless their evidence discredited by way of eliciting
contrary facts in their mouth. Their evidence is
stands as rock, without any doubt.
56. More importantly the evidence of the PW.15
and 16 who are an independent witnesses to the
incident have categorically deposed in the very same
line of PW. 1, 2 and 4. More interestingly. the
P.W.No.16 deposed that, due to stabbing on the
deceased, his intestine had come out. Which can be
seen in the Photo of the dead body took at the time
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CRL.A.No.100217 OF 2022
of inquest which is got marked as Ex.P8. If at all he
had not witnessed the incident, how he can be sure
on the nature of a particular injury. This aspect can
be even seen in the Inquest drawn by IO at Ex.P37,
at Page no. 2 of the mahazar, while noting the
injuries found between neck to waist, its
categorically stated that, in an injury on the stomach
a portion of intestine is out.
57. Apart from that PW-7 and 8 who are the
owners of Pathan Tea shop where in front of their,
the incident had took place. Though they are not
deposed anything on the incident. But, they deposed
that, they came to know on the incident of murder
had took place right in front of their shop. In this
regard the Police have enquired them.
58. More importantly PW-9 and 10 are the
persons, who took the deceased to the KIMS
hospital, in an Auto Rikshaw from the crime scene.
But in their chief examination, they deposed in the
line of the defence line of case, stating that the
"deceased while painting fell down on the iron bar
fixed to the retaining wall of a gutter near Aynger
Bakery, at Ishwar Nagar. But during the cross
examination PW-9 categorically admitted that on
11.3.2020 at 12.00 noon he, deceased and accused
No. 1 and 2 were present Just right infront of Pathan
Tea shop, Pathan galli, which is a crime scene, as
per the prosecution case. Though, he has pleaded
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CRL.A.No.100217 OF 2022
Ignorance on the incident of assault by the accused
No.1 and 2 with the knives on the deceased, but he
admitted that he along with the PW-10 took the
deceased to the hospital. They have been followed
by the father of the deceased, also he lodging of
complaint against the accused on the offence
murder. When, the accused no. 1 and 2, and
deceased were present till noon at Pathan Gall, then
question of accused sending the deceased to
painting work at Iswarnagar, self falling on a rod rod
fixed at Gutter, while painting are all appears to be
an imginary story of the defense, set up to encash
some discrepancy found in the prosecution records.
But, in fact the fact admitted by the P.W.No.9 and
10 are more natural and which is a corroboration to
the case of the prosecution.
59. With regard to the motive is concerned,
though it is a settled position of law is that where the
case is based on eye witnesses, the motive takes
back seat. However, in this case it is the prosecution
case is that on the previous night of the incident, the
deceased being on the influence of alcohol gave wild
look towards to the accused No.1 and 2, while they
sitting near Government Urdu School, which has
provoked them to pick up a quarrel with the
deceased. However, this has been pacified by the
people who gathered therein and made them to
separate being thought that you being friends, there
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CRL.A.No.100217 OF 2022
is no point in quarreling for a petty reason. However,
this accused No.1 and 2 have took it as a challenge
and have discussed to finish the deceased by calling
him near Pathan galli Tea shop. This fact has been
categorically deposed by the PW.3, who is the
brother of the deceased. According, P.W.No.3 on the
previous night, when his brother had come to home
on late night, on enquiry with the deceased for the
reasons, he told that the accused No.1 and 2 have
picked up quarrel with him. However, PW-3 consoled
his brother to sort out the issue by speaking with the
accused No.1 and 2 on next day morning. For which
on the date of incident of murder. P.W.No.3 by
taking off to his job, he had stayed at home, but
before doing something, the incident had took place.
From this it is very clear that the accused No.1 and 2
had have motive to commit the murder of deceased.
If at all the accused No.1 and 2 had have no motive,
how would they came to Pathan galli Tea shop by
having knives by each of one. In fact it is also a
corroboratory piece of evidence.
60. According to the prosecution, in the
incident even the accused No.2 has received some
injuries to his hand. The IO had sent him to medical
examination. To prove the said fact the prosecution
examined the Doctor who treated the accused no. 2
as PW.22. According to the doctor, on enquiry on the
history of injury. who told that, he got injury in the
incident took place on 11.3.2020 at 12.30 p.m. at
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CRL.A.No.100217 OF 2022
Pathangalli, Old Hubballi. Though the said portion of
evidence cannot be considered as substantial piece
of evidence, as-the said statement is considered to
be made in the custody of the police which is not
admissible under Section 24, 25 and 26 of the Indian
Evidence Act., But with regard to the injury, he
suffered he has not offered any explanation, how he
has received injury or how did he get injured. For
which, it can be inferred that, the Injury might have
caused, in altercation took place in the incident.
Which is also piece of evidence corroborates the case
of the prosecution.
61. The doctor who conducted the postmortem
on the dead body of the deceased has categorically
deposed that there were 15 incised injuries found on
the deceased. The injury could only possible with the
sharp edged object. The P.W.No. 21, who is the
doctor conducted the postmortem deposed that, he
himself examined M.O.5 and 6 while giving weapon
opinion and stated that the injuries found on the
deceased could possible to be caused with the very
said objects or with the objects like them. But,
categorically, rejected the suggestion of the learned
Counsel for the Accused that, the injuries are not
caused with an accident, and with the blunt object
like, falling on the iron rods. This piece of evidence,
very importance and relevant to say, the death was
not caused due to the injuries received in an
accident. But, this aspect of evidence, very
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CRL.A.No.100217 OF 2022
substantial to conclude the death of the deceased as
the homicidal death, due to the stab injuries
received by him. This is a substantial piece of
evidence to the case of the prosecution that, the
injuries are due to the stabbing by the accused
alone, not caused with the self fall on the iron rods.
Even, the fast of nature of injuries causes on the
body, when a man accidentally falls on the iron fixed
under the under construction work, are judicially
noticeable. If such injuries are rigor, and
unimaginary. As those causes normally would be
deep injuries on the body,
62. PW-22 is an expert attached to RFSL
Belagavi. According to him he has examined the
bloodstained mud seized from the crime scene. The
blood of the deceased, two knives, the clothes of the
accused, clothes of the deceased in all 13 articles.
MO No. 2 is the ashpalt with the blood stains
collected from the crime scene, MO No. 5 and 6 are
Knvies seized on the instance of the accused. in
which in one of the knives there was a blood stain,
also MO no. 7 to 9 are the clothes of the accused,
MO No. 4 is the Shirt, and MO No. 10 to 13 are the
pant, under wear, one pair of chappals, one wrist
bangle are the articles belongs to the deceased. In
all the articles, the expert found the human blood,
belongs to the "B" group. It means to say the
bloodstains found on the knife seized on the instance
of the accused, the bloodstains on the clothes of the
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CRL.A.No.100217 OF 2022
accused were very much tallying with the blood
group of the deceased, which is another
corroboratory piece of evidence to connect the
accused.
63. It is the defence of the accused is that the
deceased while carrying painting work on the
Iyangar Bakery, fell down on the iron bars which
were vertically fixed to the retaining wall of gutter
which were caused injury to his body. The iron rods
were blunt and they were placed in bulky based on
the size of the retaining wall. If a person fall down
on such a fixed iron bars, there will be uniform type
of injuries will be caused in a definite place and it
cannot be here and there. Some times the iron rods
may possibly fiercely entered into the body and will
come over from the other side. But the doctor who
conducted the postmortem of the deceased has
categorically deposed that the injuries found on the
deceased were all incised injuries, which could be
possible only by sharp edged object. Even he has
categorically deposed that the said injury could be
possible from the M.O.No.5 and 6, or such type of
weapons alone and even the doctor deposed that he
found injuries on both the hands of deceased which
could possibly causes, when he brings his hands for
the defence, all these are corroboratory piece of
evidence to the prosecution case is that injuries were
caused with the sharp edged object 1.e. knife.
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CRL.A.No.100217 OF 2022
64. Another important piece of evidence
available in this case to support the prosecution is
that after arresting the accused they have been
brought to the police station, interrogated on the
incident who admitted the commission of offence and
at that time they gave disclosure statement by
disclosing the place where they hidden the knives.
Accordingly, they lead the panchas and police
officers to the burial ground of Mavanur village and
they have seized by drawing the mahazar. This
aspect has been categorically deposed by the PW.5
and even the I.O. It means to say the M.0.5 and 6
are the weapons used for commission of the offence
by the accused.
65. It is the case of the defence is that there is
no such incident as alleged by the prosecution was
really took place. In fact the accused No.1 and 2 who
used to offer painting job to the deceased on
11.3.2020 at morning by calling the deceased have
had sent him to Iyenger Bakery, at Ishwar Nagar, for
painting work. But wherein he by falling on the iron
bars fixed to the retaining wall of a gutter got
injured, though it is the PW-9 and 10 have shifted
him to the hospital he died. But, the father of the
deceased, despite knowing the fact of death of his
was accidental. but demanded for the compensation
from the accused No.1 and 2 on the ground that as
the deceased sent his son to carry out the painting
work, as his met with an accident, while carrying out
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CRL.A.No.100217 OF 2022
the work of the accused. Thus, its the duty of the
accused pay the compensation, thus they are liable
to pay him the compensation. In this regard, the
father of the deceased taken up subject matter with
the Jamaat, who are the community heads before
whom the accused expressed their inability to pay
any compensation as they are poor. Annoying, from
it with intend to implicate the accused No.1 and 2 in
a false case lodged a false complaint alleging that
this accused No.1 and 2 have committed murder of
his son. The Police being in hand in glow with the
complainant have created the facts, documents,
witnesses and filed the charge sheet and most of the
witnesses have deposed by supporting the
prosecution case.
66. But, the defense of the accused is a bleak,
which is not probable, and appears to be a cooked
up story, for the reasons that, in this case, firstly
PW.1 to 4. 15 and 16 have categorically deposed the
place of incident and also cause for the incident, for
the death of deceased. According to the prosecution,
the incident was taken place at 12.30 noon.
Immediately after the incident the injured has been
shifted to the hospital. If the prosecution witnesses
deposed during the trial are considered
approximately 30 minutes time would require to
reach KIMS hospital from the place of incident. By
taking the deceased they might have reached to the
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CRL.A.No.100217 OF 2022
KIMS hospital at 1.00 p.m. here and there. The
doctor has to examine the condition of the patient.
After examining him they declared him as brought
dead. This aspect has been undisputedly proved by
the prosecution.
67. In the mean time the I.O. PW.24 deposed
that. He has got the wireless message on the
incident of assault on a boy by the two persons with
the knives at 12.45. by knowing the fact that, such
an incident has been taken place at Pathan galli he
deputed his staff to preserve the evidence of the
crime. He has reached to the KIMS hospital to know
the condition of the injured. He came to know
injured was already dead and his body was kept in
mortuary. On examination of dead body at mortury,
he found there were several stab injuries on his
body. He returned to the police station. At 2.00 p.m.
the complainant in this case came to the Police
Station and submitted his oral information on the
incident, which has been reduced into writing,
registered the case. If the chronological list of
incident and their time are considered, there is no
time available to create the facts as alleged by the
defence. There is no opportunity to fabricate the
facts of accident death into a story into a brutal
murder by two persons, that too in a thickly
populated public place.
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68. Apart from that according to the defence,
the incident of self fall by the deceased had took
place in a public place, theycould have examined the
owner of the Bakery, to whom they placed the
service of the deceased for his disposal. Apart from
that, if at all any incident had been taken place by
self fall on the iron rods fixed to the gutter in the
pulbic place, it is the negligence on the part of the
responsible local authorities. In that event the
petitioner by taking up case before the competent
authority, still had an opportunity to claim the
compensation for their tortuous liability. But in any
way it cannot be believed the story of the defense.
As there is no materials to substantiate their
defense. Except some minor and negligible
discrepancy, which are bound to happen, during the
course of collection material by the 10. As he has to
start his process with the Zero to Hundred, to made
out his case against the accused.
69. Apart from that the investigation agency is
an independent body, in every case, it cannot be put
false blame on the institution. There may be
instances where the Agency, either It would not have
acted impartially or shown its prudence. For some
such incident, the enormous work done by the
investigation agency cannot be over looked. It is the
State Agency consisting of a trained officer. If at all
the false case has been lodged against the accused.
what is the enmity between the accused and
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CRL.A.No.100217 OF 2022
Investigation Agency. to fix the innocent persons in a
false case. If at all such a false complaint has been
lodged against them, they are represented by a
learned Counsel from the date of first production to
until winding of Trial. They could have taken, legal
recourse call the evidence in support of their case.
Otherwise, they could have elicited the facts in the
mouth of the Prosecution witnesses. In this case, the
P.W.No.1,3 and 4, 15 and 16 are working class. Its
difficult to say. they are more intelligent and having
materials to build up the case turn the self fall into a
brutal murder case. Even, it assume for the sake of
discussion that, the P.W.No.1,3,4,15 and 16 are
deposing the evidence in the line of fabricated facts.
But, they can only say on the fact of assault on the
deceased, but they cannot create the scene with the
every minute circumstances, normally would present
in a live case of murder. In that event, they are easy
prey during the cross Examination. The emotions in
the case of murder and in the case of accidental
death are different. P.W.No.1 during evidence, cries
by seeing the photo of his son took at the time of
conducting the inquest. See the demeanor, the
complains that, there are offers from the relatives of
the accused to settle the Issue by taking money.
P.W.No.3 narrates that, the accused were stabbing
on his brother, as if they are chopping the tender co-
co nut with the sickle. P.W.No.16 says that, in the
incident intestine of the deceased had come out.
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CRL.A.No.100217 OF 2022
These are only affirms the case of the prosecution
very strongly.
70. The whole concept of the criminal justice
system is to protect the innocent persons, and
convict only the guilty. For which there are various
safe guards under the law. Which are favors mainly
to protect the innocent man, from the false
prosecution. That too avoid the might of any person
in power or Agency vested with the Authority. In the
entire case the defence has made out no grounds,
What was the enmity between the investigation
agency, to fix them in a false case. Thus, I hold it
clearly that, the case of the prosecution is clear as
that of a crystal. Any number of doubt, and
discrepancy, they are not even created the minimum
doubt, to suspect the case of the prosecution. As the
evidence of the prosecution witnesses, who
witnessed the incident are firm like rock, and they
are confident, even in intensive and quite lengthy
cross examination, not even single instances has
been elicited to discredit their evidence or to doubt
their character.
71. The defence made strategic attempt to
encash some discrepancy found in the prosecution
evidence. For example in Ex.P.53 the place of
incident was mentioned as Ishwar Nagar, Katagar
oni, Hubballi. On that basis they are claiming that
the place of incident is Ishwar Nagar as contended
- 24 -
CRL.A.No.100217 OF 2022
by them and it is by an accident. But, in the very
same document the history of incident was shown as
assault. Not as self fall or accident. This information
has been furnished by the PW-9. As discussed earlier
though, P.W.No.9 in his chief examination had
supported the defence version, but during the cross
examination when learned Public Prosecutor
suggested his contradictions by referring the
statements given u/Sec.161 Cr.P.C before the Police,
he has admitted most of the suggestions as true and
more over mere on the mention of Ishwar Nagar in
Ex.P.53 alone, the entire case of the prosecution
cannot be doubted.
72. With regard to M.O.4 a shirt of the
deceased which was produced by the complainant
with the 1.0. which was seized by it by drawing a
mahazar. But it was produced before the 1.0. after
five days of the incident. The complainant in his
evidence deposed that the colour of the said shirt
was Jamoon colour but M.O.4 is in a dark blue or
black in colour type of shirt. Secondly the
complainant deposed that the shirt was handed over
to him at the time of postmortem examination by
the Doctor, which has been kept with him and
produced before the I.O. But the doctor who
conducted the post mortem examination has been
examined as PW-20 who deposed that at the time of
postmortem there was no shirt on the dead body of
the deceased and he had not at all handed over the
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CRL.A.No.100217 OF 2022
M.O.4 to the complainant. According, to the defence
in the accidental place itself, the PW-9 and 10 have
removed the shirt of the deceased and thrown in the
spot itself. But FMOVADas been created to this case.
But, in this aspect, indeed there is some lack of
connection, with regard to handing over the shirt of
the deceased to the complainant, in particularly who
handed over it to him and when. Let us examine the
evidence of P.W.No. 1 on the color of the shirt at MO
4, he deposes that by seeing the MO No.4, its a
Jamoon colour. That's his understanding on the
colour. Even, well fried jamoon looks like little blacky
colour, that might be his imagination. With regard,
to who handed over the said clothes to the
complainant is concerned, if the evidence is of the
prosecution witness, even the P.W.No. 9 and 10,
who are not supported the prosecution is read, they
are very firm that, at the time of admitting the
deceased into the Hospital, deceased's father was
present. Further, the doctor have examined the
deceased initially, by that time to examine the
deceased, the doctor who examining may be
removed the clothes and handed over to the
complainant. Further, its very much sure that, at the
time of postmortem there was no shirt on the dead
body. If the Ex.P5 to 11 photos are perused, which
are taken while conducting the inquest on the dead
body. There was no shirt on it. Only jeans pant,
underwear, metal ring in hand, chappals in the both
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CRL.A.No.100217 OF 2022
the leg can be seen. Thus, its the P.W.No.20 the
doctor who conducted the post mortem is obviously
right that, at the time of conducting PM, there was
no shirt on the dead body, and he was not person,
who handed over the MO No.4 to the complainant.
But, mere on the ground of some missing link in it
cannot be said that M.O.4 was not at all the shirt of
the deceased and it was created. In fact if the M.O.4
is seen, there were cuts here and there and full of
dried stains found on it and more over this will not
go to the root of the prosecution. On that ground
also the prosecution case cannot be doubted.
73. Another point raised by the defence is that
if at all the M.0.5 and 6 knives have been used for
commission of offence the whole knife become
bloodstained and it cannot be here and there. More
over in one of the knife, the expert could not found
the bloodstains which shows M.O.5 and 6 might have
fixed to this case.
74. As per the evidence of the Prosecution, the
knives were seized almost two days after the
incident. But the M.Os. even detected only on the
disclosure statement given by the accused. The place
is burial ground at Mavanur Village, which is an
isolated place where normally people cannot visit.
The hiding of a weapon in that remote area will only
known to the person who did it. Admittedly, the
panch at PW.5 categorically deposed that they lead
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CRL.A.No.100217 OF 2022
the 1.0. and panchas to the place where they hidden
the knives. Mere not finding bloodstains on one knife
cannot be a ground to doubt the case of the
prosecution. There may be a chances of washing the
knife, before placing it and kept there itself. It is a
not natural conduct of an human being that, after
using the weapon, or committing of the offence, he
do all possible act to destroy the evidence of the
crime. There may be chances that, before hiding it in
a remote place, one might have washed it. Even this
aspect will not come to the rescue of the defence.
75. Another important point raised by the
defence is that the accused and deceased were
friends. Admittedly prior to the incident there were
no quarrels between them and there were no
incidents took place provoking them commit the
offence of murder. Without any reasons and motive
the friends wont commit the murder of their own
friend. Thus, there is no motive. Thus, the question
of committing of offence of murder by the accused
does not arise.
76. But this court has already discussed on the
said point. It is the PW.1 and 3 have categorically
deposed that on the previous night of the Incident,
when the deceased came to home very late, on
enquiry itself he had disclosed there was an
altercation between him and his friends the accused.
That is the reason the PW.3 on the next day morning
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CRL.A.No.100217 OF 2022
remained at home to sort out the dispute between
the deceased and accused, but before making any
such efforts by the P.W.No. 3, he lost his brother
which is an unfortunate incident. A life of an young
boy was over for a pity reasons. Thus, the
contention of the defence that there was no motive
behind the commission of offence cannot be
accepted. From this I proceed to hold that the
prosecution has proved its case beyond all
reasonable doubt that accused No.1 and 2 herein to
take the revenge for staring at them by the
deceased by giving wild look, also picked up a
quarrel on the previous night, have planned to finish
the deceased. Accordingly, on 11.3.2020 at 12.30
noon by taking an advantage that the deceased was
at Pathan Galli, near Pathan Tea shop picked up a
quarrel, and indiscriminately stabbed all over the
body with knives in a broad day light by knowing the
fact that the injuries which are going to inflict on the
deceased are sufficient to cause his death. Despite
taking the injured to the hospital, it was not useful
as the doctors declared him as brought dead. On
that ground, I answer point No. 1 in affirmative.
13. Upon reconsideration, re-evaluation and re-
appreciation of the entire material on record, we are of the
considered opinion that the said findings recorded by the Trial
Court that the death of deceased was on account of the
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CRL.A.No.100217 OF 2022
accused stabbing him cannot be said to suffer from any
illegality or infirmity nor can the same be said to be capricious
or perverse or contrary to the facts or law warranting
interference of this Court in the present appeal.
14. The next question that arises for consideration in
the present appeal is as to whether the accused are guilty of
committing the offence of murder under Section 300 of IPC
punishable under Section 302 IPC or as to whether they are
guilty of committing the offence of culpable homicide not
amounting to murder as contemplated under Section 299 r/w
exceptions No.1 and 4 to Section 300 IPC punishable under
Section 304 Part I or Part II of IPC. In the instant case, the
material on record including the evidence of the eye witnesses
viz., P.W.1, 3, 4, 15 and 16 as well as the evidence of P.W.13
and 17 are categorical and consistent with the fact that the
accused and the deceased were sitting inside a tea shop at
Patan Galli when a fight/quarrel/scuffle broke out between
them and all of them being friends quarrelled and argued with
each other leading to the accused stabbing the deceased. In
fact, the evidence also reveals that before the accused stabbed
the deceased, the deceased attempted to hit them with a
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CRL.A.No.100217 OF 2022
wooden club and there were heated arguments and quarrel
between them before the stabbing took place.
15. The question as to whether an accused would be
guilty of an offence of murder punishable under Section 302
IPC or whether he could be convicted for offence of culpable
homicide not amounting to murder and punishable under
Section 304 IPC has been the subject matter of various
judgments of the Apex Court, this Court and other High Courts.
In the case of Uday Singh vs. State of U.P. - (2002) 7 SCC 79,
the Apex Court held as under:
"5. After having concluded in the manner as aforesaid,
the trial court held them guilty under Section 302 read with
Section 34 IPC. The High Court, on appeal after reappraisal of
the evidence, observed that the presence of contusion around
the neck of the deceased Shishupal Singh is enough indication
of use of force by hand and considering that the nature of
injury and the pressure put by the appellant and Gainda Singh
was so severe that internal bleeding had also taken place
inasmuch as the hyoid bone had been fractured, and thus the
intention of the appellant and Gainda Singh to cause the
death of Shishupal Singh was proved beyond all reasonable
doubt. The High Court concluded that the appellant and
Gainda Singh had been rightly convicted under Section 302
read with Section 34 IPC.
6. From the findings recorded by the trial court as well as
the High Court, it is clear that the fight between the two
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CRL.A.No.100217 OF 2022
parties started all of a sudden as a result of obstruction
caused in digging of the foundation and there is no evidence
to show that the accused attacked the deceased with deadly
or dangerous arms (or weapons). It was only in a fight, hand
to fist, that both Gainda Singh and the appellant had held the
neck of the deceased, Shishupal Singh with such force as to
ultimately result in strangulation and his death. It is very
difficult to conceive as to how much pressure was applied
either by Gainda Singh or the appellant on the deceased's
neck so as to cause death. It would be reasonable to hold that
the injuries were caused by the appellant on the deceased in a
sudden fight where no arms (or weapons) were used and that
fight took place in the heat of passion and no common
intention to kill the deceased could be inferred. We cannot
definitely conclude who actually inflicted the fatal injury as the
evidence on record discloses that Gainda Singh and the
appellant both strangled the deceased, which action is part of
the sudden unarmed fight nor can we conclude that the
appellant had an intention to cause death or cause such bodily
injury as is likely to cause death, though we attribute to him
knowledge that such act is likely to cause death. Thus the
appellant and Gainda Singh are guilty of culpable homicide
not amounting to murder.
7. In the circumstances, we set aside the conviction
recorded by the trial court as affirmed by the High Court
under Section 302 read with Section 34 and instead convict
him under Section 304 Part II and reduce the sentence to
imprisonment for a period of seven years. The bail granted
earlier shall stand cancelled and the appellant shall surrender
before the trial court and be committed to prison to serve out
the remaining part of the sentence."
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16. In the case of Chhidamilal vs. State of M.P. -
(2002) 9 SCC 369, it was held as under:
"5. Our independent analysis of the evidence on the
record shows that the appellants had formed an unlawful
assembly with the object of taking forcible possession of the
land and if necessary, to give beating to the complainant
party to achieve their object. During this fight, Narain,
belonging to the accused party received a fatal blow at the
hands of Gajraj Singh, the deceased, whereafter the
complainant party was assaulted and Gajraj Singh received
injuries to which he later on succumbed.
6. Looking to the manner in which the assault took
place over the land, which was in the possession of the
complainant party, it appears to us that the appellants did not
intend to cause the murder of deceased Gajraj Singh. The
offence committed by the appellants in the established facts
and circumstances of the case, resulting in the death of Gajraj
Singh was only culpable homicide not amounting to murder.
The appellants can definitely be clothed with the knowledge
that the injuries caused by them were likely to cause death or
such bodily injury as was likely to cause the death of Gajraj
Singh. The offence under the circumstances, would fall under
Sections 304 (Part II)/149 IPC and not under Sections
302/149 IPC. We, therefore, accept these three appeals partly
and hold that the offence committed by the 13 appellants is
not one under Sections 302/149 IPC but one under Sections
304 (Part II)/149 IPC. So far as the offence under Section 148
IPC is concerned, that has been proved to have been
committed by the appellants beyond any reasonable doubt
and we maintain the conviction and sentence of the 13
appellants on that count."
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17. In the case of Mankeram vs. state of Haryana -
2003 11 SCC 238, it was held as under:
"6. Having perused the material on record and
considering the arguments of the parties, we are inclined to
agree with the argument addressed on behalf of the
appellant. There is no doubt that Suraj Mal met a homicidal
death on 17-11-1993 at Sangatpura Police Outpost
consequent to gunshots fired by the appellant. The question,
for our consideration, is whether this action of the appellant
which caused the death of Suraj Mal would amount to murder
or culpable homicide not amounting to murder. It is an
admitted fact that there was no enmity between the appellant
and the deceased and a few days before the incident in
question the appellant was promoted to the rank of Assistant
Sub-Inspector of Police and he was put in charge of
Sangatpura Police Station wherein the deceased was also
posted as head constable. It is also the case of the
prosecution itself that on the fatal day when the appellant
came back from the duty to his quarters he invited the
deceased to his room to have a drink which was accepted by
the deceased and both of them were drinking in the room of
the appellant. It is at that point of time PW 5 who happened
to be the nephew of the deceased came into the room and
interrupted their drinking session by asking his uncle to get up
and join him for dinner which was obviously not liked by the
appellant who being offended by the said interruption started
abusing in a language which was not to the liking of the
deceased who protested against such abuses. It is also the
prosecution case that it is sequel to this interruption of PW 5,
a physical fight started between the appellant and the
deceased in which, of course, the appellant used his service
revolver causing fatal injuries. While PW 5 states that there
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CRL.A.No.100217 OF 2022
was no physical fight between the deceased and the
appellant, the appellant contends that there was such physical
fight in which he was sought to be strangulated by the
deceased because of which he used the service revolver to
protect himself. The fact that there was a physical fight
between the deceased and the appellant, though not admitted
by PW 5, the same cannot be denied because it has come in
the evidence of PWs 6 and 9 that when they came to the spot
the appellant and the deceased were grappling outside the
room and they overpowered the accused and snatched the
weapon. In such circumstances, we will have to examine the
prosecution evidence whether the appellant had taken an
undue advantage or acted in a cruel or unusual manner so as
to deprive him of the benefit of Exception 4 to Section 300. As
noted above, there is no motive for killing the deceased. The
drinking session in the room of the appellant was by mutual
consent and admittedly the fight started because of the
intervention of PW 5. From these circumstances, it can be
very clearly held that the incident in question took place in a
sudden fight in the heat of passion. The next question,
therefore, for our consideration, is whether the appellant did
take an undue advantage of the said fight or acted in a cruel
or unusual manner. Keeping in mind the fact that both the
appellant and the deceased had consumed considerable
amount of alcohol which is established from the evidence of
the doctor and the service revolver being next to the place
where the fight took place and was not kept there by a
planned act by the appellant, it cannot be altogether ruled out
that the shots were fired not with an intention of taking any
undue advantage by the appellant. It is probable that in an
inebriated condition the appellant used the service revolver
because of the physical fight between the two. We do not
think the two courts below have properly appreciated this
aspect of the prosecution case when it found the appellant
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CRL.A.No.100217 OF 2022
guilty of murder and punished him under Section 302 IPC.
Having considered the material on record, we are of the
opinion that the appellant could only be found guilty of an
offence punishable under Section 304 Part II.
7. Therefore, we allow this appeal to that extent and set
aside the judgment and conviction imposed by the courts
below on the appellant under Section 302 IPC and alter the
same to one under Section 304 Part II IPC and award a
sentence of 5 years' RI. We maintain the fine of Rs 2000
imposed on the appellant by the trial court, as also the
conviction and sentence awarded on the appellant for an
offence punishable under Section 27 of the Arms Act. The
sentence of imprisonment under both the counts shall run
concurrently. The appellant shall be entitled to remission of
the period of sentence already undergone. The appeal stands
allowed to the extent mentioned above."
18. In the case of Shankarnarayan Bhadolkar Vs. State
of Maharashtra - AIR 2004 SC 1966 it was held as under:
"23. This brings us to the crucial question as to
which was the appropriate provision to be applied. In
the scheme of IPC culpable homicide is the 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, IPC practically recognises
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
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CRL.A.No.100217 OF 2022
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.
24. 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
A person commits culpable Subject to certain
homicide if the act by which exceptions culpable
the death is caused is done-- homicide is murder if
the act by which the
death is caused is
done--
INTENTION
(a) with the intention of (1) with the intention
causing death; or of causing death; or
(b) with the intention of (2) with the intention
causing such bodily of causing such bodily
injury as is likely to injury as the offender
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CRL.A.No.100217 OF 2022
cause death; or 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 (4) with the knowledge
that the act is likely to that the act is so
cause death. 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.
25. 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
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CRL.A.No.100217 OF 2022
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.
26. 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
degrees 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
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CRL.A.No.100217 OF 2022
probable" result of the injury, having regard to the ordinary
course of nature.
27. 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 Singh v. State of Kerala is an apt illustration
of this point.
28. In Virsa Singh v. State of Punjab [AIR 1958 SC 465
: 1958 Cri LJ 818] 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. Firstly, 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.
29. The ingredients of clause "thirdly" of Section 300 IPC
were brought out by the illustrious Judge in his terse
language as follows : (AIR p. 467, para 12)
"12. To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section 300
'thirdly';
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CRL.A.No.100217 OF 2022
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."
30. The learned Judge explained the third ingredient in the
following words (at AIR p. 468, para 16):
"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
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CRL.A.No.100217 OF 2022
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."
31. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh case 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.
32. Thus, according to the rule laid down in Virsa Singh
case, even if the intention of the 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.
33. 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
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-- 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.
34. 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.
35. The position was illuminatingly highlighted by this
Court in State of A.P. v. Rayavarapu Punnayya and in Abdul
Waheed Khan v. State of A.P.
36. Looking at the scenario as described by PWs 2 and
3 and evidence of ballistic report, in our considered view the
offence committed by the accused is covered by Section 304
Part II.
(emphasis supplied)
19. In the case of Daya Nand Vs. State of Haryana -
2008 Cri.L.J. 2975, it was held as under:
10. The crucial question is as to which was the
appropriate provision to be applied. In the scheme of
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
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punishment, proportionate to the gravity of the generic
offence, IPC practically recognises 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.
(emphasis supplied)
11. 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 Subject to certain exceptions
culpable homicide if the culpable homicide is murder
act by which the death if the act by which the death
is caused is done-- is caused is done--
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Intention
(a) with the intention (1) with the intention of
of causing death; or causing death; or
(b) with the intention of (2) with the intention of
causing such bodily causing such bodily injury as
injury as is likely to the offender knows to be
cause death; or 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 (4) with the knowledge that
that the act is likely to the act is so imminently
cause death. dangerous that it must in all
probability cause death or such
bodily injury as is likely to
cause death, and without any
excuse for incurring the risk of
causing death or such injury as
is mentioned above.
12. 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).
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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.
13. 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 to
cause death' 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
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(3) of Section 300 is one of the degrees 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
probability 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.
14. 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 Singh v. State of
Kerala is an apt illustration of this point.
15. In Virsa Singh v. State of Punjab 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'. Firstly, 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
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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.
16. 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.'
17. The learned Judge explained the third
ingredient in the following words (at page 468) :
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"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.''
18. 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.
19. Thus, according to the rule laid down in Virsa
Singh's case, even if the intention of the accused was
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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.
20. 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--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.
21. 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."
22. The position was illuminatingly highlighted by
this Court in State of A.P. v. Rayavarapu
Punnayya (1976) 4 SCC 382), Abdul Waheed
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Khan v. State of Andra Pradesh (2002 (7) SCC
175), Augustine Saldanha v. State of Karnataka 2003
(10) SCC 472), Thangaiya v. State of T.N. (2005 (9)
SCC 650) and in Rajinder v. State of Haryana (2006 (5)
SCC 425).
23. Considering the evidence on record in the
background of the principles of law, the inevitable
conclusion is that the appropriate conviction would be
under Section 304 Part II IPC. The conviction is
accordingly altered.
24. Undisputedly, the accused has suffered
custody of nearly 8½ years. The sentence is restricted,
therefore, to the period already undergone. The appeal
is allowed to that extent. The accused person be set at
liberty forthwith unless required in custody in any other
case.
20. In the case of Saravanan Vs. State of Pondicherry
- (2004) 13 SCC 238, it was held as under:
9. Section 34 IPC enacts that when a criminal act is done
by several persons in furtherance of the common intention of
all, each of such persons, is liable for that act in the same
manner as if it were done by him alone. The section thus lays
down a principle of joint liability in the doing of a criminal act.
The essence of that liability is found in the existence of
"common intention" animating the accused leading to the
doing of a criminal act in furtherance of such intention. The
section is intended to meet a case in which it is difficult to
distinguish between the act of individual members of a party
and to prove exactly what part was played by each of them.
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It, therefore, enacts that once it is found that a criminal act
has been committed by several persons in furtherance of the
common intention of all, each of such persons is liable for the
criminal act as if it were done by him alone. It is thus an
exception to the general rule of criminal jurisprudence that it
is the primary responsibility of the person who actually
commits a crime and only that person can be held guilty and
punished in accordance with law for his individual act.
10. In the leading case of Barendra Kumar
Ghosh v. King Emperor the appellant was charged under
Section 302 read with Section 34 IPC for the murder of a
Postmaster. The evidence disclosed that while the Postmaster
was in the office counting the money, three persons of whom
the appellant was one, fired pistols at him asking him to hand
over the cash. The trial Judge directed the jury that if they
were satisfied that the Postmaster was killed in furtherance of
the common intention of all the three, the appellant could be
held guilty of murder whether or not he had fired the fatal
shot. The appellant was accordingly convicted. Being
aggrieved by such conviction, the appellant approached the
Privy Council. It was contended on behalf of the prisoner that
he was outside the room. He was in the courtyard and was
frightened. He did not participate in the crime and hence, he
could not have been convicted for an offence punishable
under Section 302 IPC by invoking Section 34 IPC. The
contention was, however, negatived. It was held that once it
is established that an act was committed in furtherance of the
common intention of all, Section 34 could be attracted and all
could be held liable irrespective of their individual act.
11. The Judicial Committee observed that the distinction
between two types of offenders (i) principals in the first
degree, that is, who actually commit the crime; and (ii)
principals in the second degree, that is, who aid in
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commission of the crime, as found in English law has not
been strictly adhered to in India. In the circumstances,
according to Their Lordships, Section 34 would be attracted
provided that it is proved that the criminal act was done by
several persons in furtherance of the common intention of all.
12. Dealing with the argument on behalf of the
appellant that he had not fired any shot, the Judicial
Committee observed that if two men tie a rope around the
neck of third man and pull opposite ends of the rope till he is
dead, each can be held liable for the ultimate act i.e. death of
the victim. If the contention on behalf of the appellant would
be upheld that each should be held liable for his act only,
each can successfully contend that the prosecution had not
discharged the onus inasmuch as nothing more was proved
against each of them, than an attempt to kill which might or
might not have succeeded. "Thus both will be acquitted of
murder, and will only be convicted of an attempt, although
the victim is and remains a murdered man." Referring to
Sections 33, 34, 37 and 38 IPC, it was held that even if the
appellant did nothing as he stood outside the door, he could
be held liable. It is to be remembered that in crimes as in
other things "they also serve who only stand and wait".
13. The principle in Barendra Kumar Ghosh had
been reiterated by Indian courts including this Court in
several cases. In Gurdatta Mal v. State of U.P. it was
observed by this Court that Section 34 IPC
contemplates the doing of an act by several persons in
furtherance of common intention. The constructive
liability under this provision would arise if the following
two conditions are fulfilled:
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(1) There must be common intention to commit a
criminal act; and
(2) There must be participation of all the persons
in doing of such act in furtherance of that intention.
If these two ingredients are established, all the accused
would be liable for the offence which has been
committed.
14. In Afrahim Sheikh v. State of W.B. this Court stated
that no doubt a person is only responsible ordinarily for what
he does and Section 38 IPC ensures that. But the law in
Section 34 as also in Section 35 IPC declares that if the
criminal act is the result of the common intention, then every
person who did the criminal act with such intention would be
responsible for the total offence irrespective of the share
which he had in its perpetration.
15. It is thus clear that the criminal act referred to in
Section 34 IPC is the result of the concerted action of more
than one person if the said result was reached in furtherance
of the common intention and each person must be held liable
for the ultimate result as if he had done it himself.
16. We have, therefore, to see whether the death of
deceased Nadamuni had been caused by the appellants in
furtherance of a common intention to kill him. If it is so, the
appellants cannot escape the liability contending that Section
34 IPC had no application as no injury had been caused by
the appellants to deceased Nadamuni or they had not
intended to cause death of deceased Nadamuni. As observed
hereinabove and believed by the trial court as well as by the
High Court, the present appellants (A-3 and A-4) came on
cycle from Cuddalore Road and took up a quarrel with PW 1,
PW 2 and deceased Nadamuni. Though the deceased and PW
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1 and PW 2 ignored the assault and proceeded further, the
appellants chased them towards the west on Pondy-Villianur
Road and took up a quarrel again. A-1 came there along with
others and used violence and injuries were caused to
deceased Nadamuni due to which he ultimately died. It was
thus a clear case of doing of a criminal act in furtherance of
the common intention. It was in the evidence of Dr.
Balaraman that Injury 5 was sufficient in the ordinary course
of nature to cause death. Taking into consideration the
concession by the learned Public Prosecutor that the case
would not be covered by Section 302 IPC, Accused 1, 3 and 4
were convicted by the trial court for an offence punishable
under Section 304 Part II read with Section 34 IPC. In our
opinion, by applying Section 34 IPC and convicting the
appellants for an offence under Section 304 Part II read with
Section 34 IPC, no error of law has been committed either by
the trial court or by the High Court.
21. In the case of Sellappan Vs. State of Tamil Nadu -
2007 Cri. L.J 1442, it was held as under:
24. The crucial question is as to which was the
appropriate provision to be applied. In the scheme of
IPC culpable homicide is the 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, IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called,
'culpable homicide of the first degree'. This is the
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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.
25. 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 Section 300
A person commits Subject to certain exceptions
culpable homicide if culpable homicide is murder if
the act by which the the act by which the death is
death is caused is caused is done--
done--
INTENTION
(a) with the intention (1) with the intention of causing
of causing death; or death; or
(b) with the intention (2) with the intention of causing
of causing such bodily such bodily injury as the offender
injury as is likely to knows to be likely to cause the
cause death; or death of the person to whom the
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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 (4) with the knowledge that the
knowledge that the act is so imminently dangerous
act is likely to cause that it must in all probability cause
death. death or such bodily injury as is
likely to cause death, and commits
such acts without any excuse for
incurring the risk of causing death
or such injury as is mentioned
above.
26. 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.
27. 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
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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 [to cause death]' 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
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be the 'most probable' result of the injury, having
regard to the ordinary course of nature.
28. 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 v. State of
Kerala (AIR 1966 SC 1874) is an apt illustration of this
point.
29. 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.
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30. 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."
31. The learned Judge explained the third
ingredient in the following words (at p. 468) :
"The question is not whether the prisoner intended
to inflict a serious injury or a trivial one but whether
he intended to inflict the injury that is proved to be
present. If he can show that he did not, or if the
totality of the circumstances justify such an inference,
then, of course, the intent that the section requires is
not proved. But if there is nothing beyond the injury
and the fact that the appellant inflicted it, the only
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possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended
serious consequences, is neither here 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."
32. These observations of Vivian Bose, J. have
become locus classicus. The test laid down by Virsa
Singh's case 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.
33. Thus, according to the rule laid down in Virsa
Singh's case even if the intention of the 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.
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34. 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--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.
35. 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.
36. The position was illuminatingly highlighted by
this Court in State of Andra Pradesh v. Rayavarapu
Punnayya and Anr. (1976 (4) SCC 382), Abdul Waheed
Khan @ Waheed and Ors. v. State of Andra Pradesh
(2002 (7) SCC 175), Augustine Saldanha v. State of
Karnataka (2003 (10) SCC 472)
and Thangaiya v. State of T.N. (2005 (9) SCC 650).
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37. When the factual scenario in the case is set
aside on the touchstone of principles set out above, it
becomes clear that the appellant is responsible for
causing the death of the deceased. However, the
application of Section 304 Part II IPC would be
applicable and not Section 302 IPC. The conviction is
accordingly altered. Ten years' custodial sentence
would meet the ends of justice. The appeal is allowed
to the aforesaid extent.
38. Appeal is allowed to the aforesaid extent.
Order accordingly".
22. In the case of Dharam Pal Vs. State of U.P. - 2008
Cri.L.J. 1016 it was held as under:
13. In the light of the aforesaid discussions, let us
now see whether the High Court was justified, in the
facts and circumstances of the present case, to convert
the offence from Sections 302/34 IPC to Section 304
Part II IPC. In this regard, we may again note the
findings recorded by the High Court, as noted herein
earlier, in Clauses 11 and 12. The High Court observed
that the accused did not have any intention of causing
the death of Rajpal nor were the injuries caused with the
intention of causing such bodily injuries as the accused
knew were likely to cause death. The High Court further
observed that the knowledge that death was likely to be
caused could be inferred as the accused gave the blow
on the head. Let us now see whether the aforesaid act
would warrant a punishment under Section 302 or 304
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IPC. In our view, the facts disclose that there was no
premeditation and the fight resulted on drinking of water
from the hand pipe after an exchange of abuses. There
appeared no intention on the part of the appellants to
cause the death of the deceased Rajpal. Therefore, the
offence committed by the appellants, in our view, is
culpable homicide not amounting to murder because, in
our view, it falls within Exception 4 to Section 300 which
reads as under:
"Exception 4.--Culpable homicide is not murder if it
is committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender's having taken undue advantage or acted in
a cruel or unusual manner.
Explanation.--It is immaterial in such cases which
party offers the provocation or commits the first
assault."
Section 304 IPC lays down the punishment for
culpable homicide not amounting to murder and reads
as under:
"Whoever commits culpable homicide not amounting
to murder, shall be punished with [imprisonment for
life], or imprisonment of either description for a term
which may extend to ten years, and shall also be liable
to fine, if the act by which the death is caused is done
with the intention of causing death, or of causing such
bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act
is done with the knowledge that it is likely to cause
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death, but without any intention to cause death, or to
cause such bodily injury as is likely to cause death."
We have already gone through the evidence and the
other materials on record. From the evidence on record,
we cannot find any ground to discard the finding of the
High Court that it cannot be said that the accused had
any intention of causing the death of Rajpal, the
deceased, nor were the injuries caused with the
intention of causing such bodily injuries as the accused
knew were likely to cause death. Therefore, in the
absence of any intention of causing the death of the
deceased Rajpal, we are in agreement with the High
Court that the accused must be convicted of the offence
under Section 304 Part II IPC and not under Section 302
IPC.
14. For the reasons aforesaid, we do not find any
cogent reason to interfere with the judgment of the High
Court converting the offence to Section 304 Part II IPC
from Section 302 IPC. Accordingly, the appeal fails and
is dismissed with no order as to costs.
23. In the case of Anbazhagan Vs. State, - AIR 2023
SC 3660, it was held as under:
"ANALYSIS
17. Having heard the learned counsel appearing for
the parties and having gone through the materials on
record, the only question that falls for our consideration
is whether the conviction of the appellant herein for the
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offence punishable under Section 304 Part I of the IPC
should be further altered to Section 304 Part II of the
IPC.
18. We have given more than a fair idea as regards
the genesis of the occurrence and the role attributed to
the appellant herein. Dr. Karthikeyan (PW-15) was
examined by the prosecution in his capacity as the
Medical Officer who performed the post mortem of the
deceased. In the post mortem report, the doctor has
noted three injuries, (i) cut injury over 4 x 2 cm on the
left eye, (ii) cut injury 4 x 3 cm on the left forehead,
and (iii) 4 x 2 cm contusion around the left eye. The
cause of death assigned in the post mortem report
appears to be shock and haemorrhage due to head
injury.
19. As the only argument canvassed before us is
that the case does not travel beyond culpable homicide
as the same falls within the third part of Section 299 of
the IPC, the accused could only be said to have
knowledge that he is likely by his act to cause death and
not the intention to kill the deceased, we must explain
the fine distinction between the terms 'intent' and
'knowledge'.
INTENT AND KNOWLEDGE :-
20. The word "intent" is derived from the word
archery or aim. The "act" attempted to must be with
"intention" of killing a man.
21. Intention, which is a state of mind, can never
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be precisely proved by direct evidence as a fact; it can
only be deduced or inferred from other facts which are
proved. The intention may be proved by res gestae, by
acts or events previous or subsequent to the incident or
occurrence, on admission. Intention of a person cannot
be proved by direct evidence but is to be deduced from
the facts and circumstances of a case. There are various
relevant circumstances from which the intention can be
gathered. Some relevant considerations are the
following:-
a. The nature of the weapon used.
b. The place where the injuries were inflicted.
c. The nature of the injuries caused.
d. The opportunity available which the accused gets.
22. In the case of Smt. Mathri v. State of Punjab,
AIR 1964 SC 986, at page 990, Das Gupta J. has
explained the concept of the word 'intent'. The relevant
observations are made by referring to the observations
made by Batty J. in the decision Bhagwant v. Kedari,
I.L.R. 25 Bombay 202. They are as under:-
"The word "intent" by its etymology, seems to
have metaphorical allusion to archery, and
implies "aim" and thus connotes not a casual
or merely possible result-foreseen perhaps as
a not improbable incident, but not desired-but
rather connotes the one object for which the
effort is made-and thus has reference to what
has been called the dominant motive, without
which, the action would not have been taken."
(Emphasis supplied)
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23. In the case of Basdev v. State of Pepsu, AIR
1956 SC 488, at page 490, the following observations
have been made by Chadrasekhara Aiyar J.:-
"6. ... Of course, we have to distinguish
between motive, intention and knowledge.
Motive is something which prompts a man to
form an intention and knowledge is an
awareness of the consequences of the act. In
many cases intention and knowledge merge into
each other and mean the same thing more or
less and intention can be presumed from
knowledge. The demarcating line between
knowledge and intention is no doubt thin but it is
not difficult to perceive that they connote
different things. Even in some English decisions,
the three ideas are used interchangeably and
this had led to a certain amount of confusion."
(Emphasis supplied)
24. In para 9 of the judgment, at page 490, the
observations made by Coleridge J. in Reg. v.
Monkhouse, (1849) 4 COX CC 55(C), have been
referred to. They can be referred to, with advantage at
this stage, as they are very illuminating:-
"The inquiry as to intent is far less simple than
that as to whether an act has been committed,
because you cannot look into a man's mind to
see what was passing there at any given time.
What he intends can only be judged of by what
he does or says, and if he says nothing, then his
act alone must guide you to your decision. It is a
general rule in criminal law, and one founded on
common sense, that juries are to presume a man
to do what is the natural consequence of his act.
The consequence is sometimes so apparent as to
leave no doubt of the intention. A man could not
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put a pistol which he knew to be loaded to
another's head, and ftre it off, without intending
to kill him; but even there the state of mind of
the party is most material to be considered. For
instance, if such an act were done by a born
idiot, the intent to kill could not be inferred from
the act. So if the defendant is proved to have
been intoxicated, the question becomes a more
subtle one; but it is of the same kind, namely;
was he rendered by intoxication entirely
incapable of forming the intent charged?"
(Emphasis supplied)
25. Bearing in mind the test suggested in the
aforesaid decision and also bearing in mind that our
legislature has used two different terminologies 'intent'
and 'knowledge' and separate punishments are provided
for an act committed with an intent to cause bodily
injury which is likely to cause death and for an act
committed with a knowledge that his act is likely to
cause death without intent to cause such bodily injury
as is likely to cause death, it would be proper to hold
that 'intent' and 'knowledge' cannot be equated with
each other. They connote different things. Sometimes, if
the consequence is so apparent, it may happen that
from the knowledge, intent may be presumed. But it will
not mean that 'intent' and 'knowledge' are the same.
'Knowledge' will be only one of the circumstances to be
taken into consideration while determining or inferring
the requisite intent.
26. In the case In re Kudumula Mahanandi Reddi,
AIR 1960 AP 141, also the distinction between
'knowledge' and 'intention' is aptly explained. It is as
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under:-
"Knowledge and intention must not be confused.
17.... Every person is presumed to intend
the natural and probable consequences of his act
until the contrary is proved. It is therefore
necessary in order to arrive at a decision, as to
an offender's intention to inquire what the -
natural and probable consequences of his acts
would be. Once there is evidence that a
deceased person, sustained injuries which were
sufficient in the ordinary course of nature to
cause death, the person who inflicted them could
be presumed to have intended those natural and
probable consequences. His offence would fall
under the third head of sec. 300, I.P.C.
18.... A man's intention has to be inferred
from what he does. But there are cases in which
death is caused and the intention which can
safely be imputed to the offender is less grave.
The degree of guilt depends upon intention and
the intention to be inferred must be gathered
from the facts proved. Sometimes an act is
committed which would not in an ordinary case
inflict injury sufficient in the ordinary course of
nature to cause death, but which the - offender
knows is likely to cause the death. Proof of such
knowledge throws light upon his intention.
19....Under sec. 299 there need be no proof
of knowledge, that the bodily injury intended was
likely to cause death. Before deciding that a case
of culpable homicide amounts to murder, there
must be proof of intention sufficient to bring it
under Sec.300. Where the injury deliberately
inflicted is more than merely 'likely to cause
death' but sufficient in the ordinary course of
nature to cause death, the higher degree of guilt
is presumed."
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(Emphasis supplied)
It has been further observed therein as under:-
"26. ...Where the evidence does not
disclose that there was any intention, to cause
death of the deceased but it was clear that the
accused had the knowledge that their acts
were likely to cause death the accused can be
held guilty under the second part of sec. 304,
I.P.C. The contention that in order to bring the
case under the second part of sec. 304, I.P.C.
it must be brought within one of the exceptions
to sec 300, I.P.C. is not acceptable."
(Emphasis supplied)
27. Thus, while defining the offence of culpable
homicide and murder, the framers of the IPC laid down
that the requisite intention or knowledge must be
imputed to the accused when he committed the act
which caused the death in order to hold him guilty for
the offence of culpable homicide or murder as the case
may be. The framers of the IPC designedly used the two
words 'intention' and 'knowledge', and it must be taken
that the framers intended to draw a distinction between
these two expressions. The knowledge of the
consequences which may result in the doing of an act is
not the same thing as the intention that such
consequences should ensue. Except in cases where
mens rea is not required in order to prove that a person
had certain knowledge, he "must have been aware that
certain specified harmful consequences would or could
follow." (Russell on Crime, Twelfth Edition, Volume 1 at
page 40).
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28. This awareness is termed as knowledge. But
the knowledge that specified consequences would result
or could result by doing an act is not the same thing as
the intention that such consequences should ensue. If
an act is done by a man with the knowledge that certain
consequences may follow or will follow, it does not
necessarily mean that he intended such consequences
and acted with such intention. Intention requires
something more than a mere foresight of the
consequences. It requires a purposeful doing of a thing
to achieve a particular end. This we may make it clear
by referring to two passages from leading text-books on
the subject. Kenny in his Outlines of Criminal Law,
Seventeenth Edition at page 31 has observed:-
"To intend is to have in mind a fixed purpose to
reach a desired objective; the noun 'intention' in
the present connexion is used to denote the
state of mind o fa man who not only foresees but
also desires the possible consequences of his
conduct........ It will be noted that there cannot be
intention unless there is also foresight, since a
man must decide to his own satisfaction, and
accordingly must foresee, that to which his
express purpose is directed......... Again, a man
cannot intend to do a thing unless he desires to
do it."
(Emphasis supplied)
29. Russell on Crime, Twelfth Edition, 1st
Volume at page 41 has observed:-
"In the present analysis of the mental element in
crime the word "intention" is used to denote the
mental attitude of a man who has resolved to
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bring about a certain result if he can possibly do
so. He shapes his line of conduct so as to
achieve a particular end at which he aims............
Differing from intention, yet closely resembling
it, there are two other attitudes ofmind, either
ofwhich is sufficient to attract legal sanctions for
harm resulting from action taken in obedience to
its stimulus, but both of which can be denoted by
the word "recklessness". In each of these the
man adopts a line of conduct with the intention
of thereby attaining an end which he does desire,
but at the same time realises that this conduct
may also produce another result which he does
not desire. In this case he acts with full
knowledge that he is taking the chance that this
secondary result will follow. Here, again, if this
secondary result is one forbidden by law, then he
will be criminally responsible for it if it occurs.
His precise mental attitude will be one of two
kinds-(a) he would prefer that the harmful result
should not occur, or (b) he is indifferent as to
whether it does or does not occur."
(Emphasis supplied)
30. The phraseology of Sections 299 and
300 respectively of the IPC leaves no manner of doubt
that under these Sections when it is said that a
particular act in order to be punishable be done with
such intention, the requisite intention must be proved
by the prosecution. It must be proved that the accused
aimed or desired that his act should lead to such and
such consequences. For example, when under Section
299 it is said "whoever causes death by doing an act
with the intention of causing death" it must be proved
that the accused by doing the act, intended to bring
about the particular consequence, that is, causing of
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death. Similarly, when it is said that "whoever causes
death bydoing an act with the intention of causing such
bodily injury as is likely to cause death" it must be
proved that the accused had the aim of causing such
bodily injury as was likely to cause death.
31. Thus, in order that the requirements of law
with regard to intention may be satisfied for holding an
offence of culpable homicide proved, it is necessary that
any of the two specific intentions must be proved. But,
even when such intention is not proved, the offence will
be culpable homicide if the doer of the act causes the
death with the knowledge that he is likely by his such
act to cause death, that is, with the knowledge that the
result of his doing his act may be such as may result in
death.
32. The important question which has engaged our
careful attention in this case is, whether on the facts
and in the circumstances of the case we should maintain
the conviction of the appellant herein for the offence
under Section 304 Part I or we should further alter it to
Section 304 Part II of the IPC?
SECTIONS 299 AND 300 OF THE IPC:-
33. Sections 299 and 300 of the IPC deal with the
definition of 'culpable homicide' and 'murder',
respectively. In terms of Section 299, 'culpable
homicide' is described as an act of causing death (i)
with the intention of causing death or (ii) with the
intention of causing such bodily injury as is likely to
cause death, or (iii) with the knowledge that such an act
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is likely to cause death. As is clear from a reading of this
provision, the former part of it emphasises on the
expression 'intention' while the latter upon 'knowledge'.
Both these are positive mental attitudes, however, of
different degrees. The mental element in 'culpable
homicide', that is, the mental attitude towards the
consequences of conduct is one of intention and
knowledge. Once an offence is caused in any of the
three stated manners noted-above, it would be 'culpable
homicide'. Section 300 of the IPC, however, deals with
'murder', although there is no clear definition of
'murder' in Section 300 of the IPC. As has been
repeatedly held by this Court, 'culpable homicide' is the
genus and 'murder' is its species and all 'murders' are
'culpable homicides' but all 'culpable homicides' are not
'murders'. (see Rampal Singh v. State ofU.P., (2012) 8
SCC 289)
34. In the case of State of Andhra Pradesh v.
Rayavarapu Punnayya, (1976) 4 SCC 382, this Court,
while clarifying the distinction between these two terms
and their consequences, held as under:-
"12. In the scheme of the Penal Code, 'culpable
homicide' is genus and 'murder' is species. All
'murder' is 'culpable homicide' but not vice-versa.
Speaking generally, 'culpable homicide not
amounting to murder'. For the purpose of ftxing
punishment, proportionate to the gravity of this
generic offence, the Code practically recognises
three degrees of culpable homicide. The ftrst is
what may be called 'culpable homicide of the ftrst
degree'. This is the greatest form of culpable
homicide, which is deftned in Section 300 as
'murder'. The second may be termed as 'culpable
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homicide of the second degree'. This is punishable
under the ftrst 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 ofSection 304."
(Emphasis supplied)
35. Section 300 of the IPC proceeds with
reference to Section 299 of the IPC. 'Culpable homicide'
may or may not amount to 'murder', in terms of Section
300 of the IPC. When a 'culpable homicide is murder',
the punitive consequences shall follow in terms of
Section 302 of the IPC, while in other cases, that is,
where an offence is 'culpable homicide not amounting to
murder', punishment would be dealt with under Section
304 of the IPC. Various judgments of this Court have
dealt with the cases which fall in various classes of
firstly, secondly, thirdly and fourthly, respectively,
stated under Section 300 of the IPC. It would not be
necessary for us to deal with that aspect of the case in
any further detail.
36. The principles stated in the case of Virsa
Singh v. State of Punjab, AIR 1958 SC 465, are the
broad guidelines for the courts to exercise their judicial
discretion while considering the cases to determine as to
which particular clause of Section 300 of the IPC they
fall in. This Court has time and again deliberated upon
the crucial question of distinction between Sections 299
and 300 of the IPC, i.e. 'culpable homicide' and 'murder'
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respectively. In Phulia Tudu v. State of Bihar, (2007) 14
SCC 588, this Court noticed that confusion may arise if
the courts would lose sight of the true scope and
meaning of the terms used by the legislature in these
sections. This Court observed that the safest way of
approach to the interpretation andapplication of these
provisions seems to be to keep in focus the keywords
used in the various clauses of these sections.
37. This Court in Phulia Tudu (supra) has
observed that 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 of the IPC. The
following comparative table will be helpful in
appreciating the points of distinction between the two
offences:-
Section 299 Section 300
A person commits Subject to certain exceptions
culpable homicide if culpable homicide is murder if the
the act by which act by which the death is caused is
the death is caused done-
is done-
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INTENTION
(a) with the intention (1) with the intention of causing
of causing death; or death; or
(b) with the intention with the intention of causing such
of causing such bodily bodily injury as the offender knows to
injury as is likely to be likely to cause the death of the
cause death; or 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 infiicted
is suffi cient in the ordinary course of
nature to cause death; or
KNOWLEDGE
(c) with the act is (4) with the knowledge that the act is
likely to cause death so imminently dangerous that it must
in all probability cause death or
such bodily injury as is likely to cause
death, and commits such act without
any excuse for incurring the risk of
causing death or such injury as
mentioned above.
38. Clause (b) of Section 299 of the IPC
corresponds with clauses (2) and (3) of Section 300 of
the IPC. The distinguishing feature of the mens rea
requisite under clause (2) is theknowledge
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
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killing within the ambit of this clause. This clause (2) is
borne out by illustration (b) appended to Section 300 of
the IPC.
39. Clause (b) of Section 299 of the IPC does
not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of
Section 300 of the 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 ruptureof 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 of the IPC, instead of the
words "likely to cause death" occurring in the
corresponding clause (b) of Section 299 of the 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 of the IPC and clause
(3) of Section 300 of the IPC is one of the degree of
probability of death resulting from the intended bodily
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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 of the 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.
40. 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. The decision in the case of
Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, is
an apt illustration of this point.
41. The scope of clause thirdly of Section 300 of
the IPC has been the subject matter of various decisions
of this Court. The decision in Virsa Singh (supra) has
throughout been followed in a number of cases by this
Court. In all these cases the approach has been to find
out whether the ingredient namely the intention to
cause the particular injury was present or not? If such
an intention to cause that particular injury is made out
and if the injury is found to be sufficient in the ordinary
course of nature to cause death, then clause thirdly of
Section 300 of the IPC is attracted. Analysing clause
thirdly and as to what the prosecution must prove, it
was held in Virsa Singh (supra) as under:-
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"15. First, it must establish, quite objectively, that a
bodily injury is present;
16. Secondly, the nature ofthe injury must be
proved; These are purely objective investigations.
17. 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...
18. Once these three elements are proved to be
present, the enquiry proceeds further and,
19. 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."
(Emphasis supplied)
It was further observed as under:-
"20. ... 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."
(Emphasis supplied)
42.Thus, it is clear that the ingredient of clause
thirdly is not the intention to cause death but on
the other hand the ingredient to be proved is
the intention to cause the particular injury that was
present. It is fallacious to contend that wherever there
is a single injury only a case of culpable homicide is
made out irrespective of other circumstances. In
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Emperor v. Sardarkhan Jaridkhan, AIR 1916 Bom 191, it
was observed as under:-
"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."
(Emphasis supplied)
43. Commenting upon the aforesaid observation of
the Bombay High Court, Justice Bose, in Virsa Singh
(supra), held thus:-
"23. ... With due respect to the learned Judge
he has linked 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."
44. As to how the intention is to be inferred even
in a case of single injury, Justice Bose further held as
under:-
"23. ... 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
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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 oflaw.
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.
24. 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 one offact. ..."
(Emphasis supplied)
45. This question was again considered in Jagrup
Singh v. State of Haryana, (1981) 3 SCC 616, by a
Bench of this Court consisting of Justice D.A. Desai and
Justice A.P. Sen and following the ratio laid down in
Virsa Singh (supra) it was held as under:-
"6. There is no justiftcation for the assertion that
the giving of a solitary blow on a vital part of the
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body resulting the death must always necessarily
reduce the offence to culpable homicide not
amounting to murder punishable under Section
304 Part II of the Code. If a man deliberately
strikes another on the head with a heavy log
ofwood or an iron rod or even a lathi so as to
cause a fracture of the skull, he must, in the
absence of any circumstances negativing the
presumption, be deemed to have intended to
cause the death of the victim or such bodily injury
as is sufficient to cause death. The whole thing
depends upon the intention to cause death, and
the case may be covered by either clause Istly or
clause 3rdly. The nature of intention must be
gathered from the kind of weapon used, the part
of the body hit, the amount of force employed
and the circumstances attendant upon the death."
The aforesaid decision of this Court in Jagrup Singh
(supra) has been strongly relied upon by the learned
senior counsel appearing for the appellant.
46. However, the learned senior counsel did
not seek to rely on the observations made in para 6
referred to above in the case of Jagrup Singh (supra).
The learned senior counsel relied on the observations
which we shall refer to hereinafter, but after giving
some factual background in the case of Jagrup Singh
(supra). On the fateful evening, the marriage of one Tej
Kaur was performed. Shortly thereafter, the appellant
Jagrup Singh armed with a gandhala, his brothers
Billaur Singh armed with a gandasa and Jarmail Singh
and Waryam Singh armed with lathies emerged
suddenly and made a joint assault on the deceased
Chanan Singh and the three eyewitnesses, Gurdev
Singh, PW 10, Sukhdev Singh, PW 11 and Makhan
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Singh, PW 12. The deceased along with the three
eyewitnesses was rushed to the Rural Dispensary, Rori
where they were examined at 6 pm by Dr. Bishnoi, PW
3, who found that the deceased had a lacerated wound
9 cm × 11/2 cm bone deep on the right parietal region,
9 cm away from the tip of right pinna; margins of
wound were red, irregular and were bleeding on touch;
direction of wound was anterior-posterior. The deceased
succumbed to the injuries. The Doctor who performed
an autopsy on the dead body of the deceased deposed
before the Trial Court that the death of the deceased
was due to cerebral compression as a result of the head
injury which was sufficient in the ordinary course of
nature to cause death. In the background of this case,
this Court held:-
"14. ... In our judgment, the High Court
having held that it was more probable that the
appellant Jagrup Singh had also attended the
marriage as the collateral, but something
happened on the spur of the moment which
resulted in the infliction ofthe injury by Jagrup
Singh on the person of the deceased Chanan
Singh which resulted in his death, manifestly
erred in applying Clause Thirdly of Section 300 of
the Code. On the ftnding that the appellant when
he struck the deceased with the blunt side of the
gandhala in the heat of the moment, without
pre-meditation and in a sudden ftght, the case
was covered by Exception 4 to Section 300. It is
not suggested that the appellant had taken
undue advantage of the situation or had acted in
a cruel or unusual manner. Thus, all the
requirements of Exception 4 are clearly met.
That being so, the conviction ofthe appellant
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Jagrup Singh, under Section 302 ofthe Code
cannot be sustained.
15. The result, therefore, is that the
conviction of the appellant under Section 302 is
altered to one under Section 304, Part II of the
Indian Penal Code. For the altered conviction,
the appellant is sentenced to suffer rigorous
imprisonment for a period ofseven years."
(Emphasis supplied)
We have noticed something in the aforesaid
observations made by this Court which, in our opinion,
creates some confusion. We have come across such
observations in many other decisions of this Court over
and above the case of Jagrup Singh (supra). What we
are trying to highlight is that in Jagrup Singh (supra),
although this Court altered the conviction from Section
302 to Section 304 Part II, it took shelter of Exception 4
to Section 300 of the IPC. The question is, was there
any need for the Court to take recourse to Exception 4
to Section 300 of the IPC for the purpose of altering the
conviction from Section 302 to Section 304 Part II of the
IPC. We say so because there is fine difference between
the two parts of Section 304 of the IPC. Under the first
part, the crime of murder is first established and the
accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under the
second part, the crime of murder is never established at
all. Therefore, for the purpose of holding an accused
guilty of the offence punishable under the second part of
Section 304 of the IPC, the accused need not bring his
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case within one of the exceptions to Section 300 of the
IPC.
47. In Jawahar Lal v. State of Punjab, (1983) 4
SCC 159, also the accused hit the deceased with a knife
blow in front of left side of his chest and as per the
autopsy report the injuries were found sufficient in an
ordinary course of nature to cause death. This Court
took a view that the accused could be attributed the
knowledge that he was likely to cause an injury which
was likely to cause death. The relevant paras of the said
judgment is reproduced as under:
"17.......we should also not further dilate on this
point in view of the decision of this Court in Jagrup
Singh v. State ofHaryana : 1981 Cri LJ 1136. In that
case after referring to the evidence, this Court held that
the appellant gave one blow on the head of the
deceased with the blunt side of the gandhala and this
injury proved fatal. The Court then proceeded to
examine as to the nature of the offence because the
appellant in the case was convicted for an offence under
Section 302. Undoubtedly, this Court said that there is
no justiftcation for the assertion that the giving of a
solitary blow on a vital part of the body resulting in
death must always necessarily reduce the offence to
culpable homicide not amounting to murder punishable
under Section 304, Part II of the Code. The Court then
proceeded to lay down the criteria for judging the
nature of the offence. It may be extracted;
The whole thing depends upon the intention to
cause death, and the case may be covered by either
clause Firstly or clause Thirdly. The nature of intention
must be gathered from the kind of weapon used, the
part of the body hit, the amount of force employed and
the circumstance attendant upon the death.
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18. We may point out that decision in Jagrup
Singh's Case 1981 Cri LJ 1136 was subsequently
followed in Randhir Singh @ Dhire v. State of Punjab
Decided on September 18, 1981 and in Kulwant Rai v.
State of Punjab Decided on August 7, 1981 (Criminal
Appeal No. 630 of1981).
19. Having kept this criteria under view, we are
of the opinion that the offence committed by the 1st
appellant would not be covered by clause Thirdly of Para
3 of Section 300 and therefore, the conviction under
Section 302, I.P.C. cannot be sustained.
20. What then is the offence committed by the
1st appellant? Looking to the age ofthe 1st appellant at
the time of the occurrence, the nature of the weapon
used, the circumstances in which one blow was inflicted,
the time of the day when the occurrence took place and
the totality of other circumstances, namely, the
previous trivial disputes between the parties, we are of
the opinion that the 1st appellant could be attributed
the knowledge that he was likely to cause an injury
which was likely to cause death. Accordingly, the 1st
appellant is shown to have committed an offence under
Section 304, Part II of the Indian Penal Code and he
must be convicted for the same and sentenced to suffer
rigorous imprisonment for five years maintaining the
sentence often."
48. In Camilo Vaz v. State of Goa [(2000) 9 SCC 1
: 2000 SCC (Cri) 1128] the accused had hit the
deceased with a danda during a premeditated gang-
fight, resulting in the death of the victim. Both the trial
court and the Bombay High Court convicted the
appellant under Section 302 IPC. This Court, however,
converted the conviction to one under Section 304 Part
II IPC and observed:- (SCC p. 9, para 14)
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"14. ... When a person hits another with a danda
on a vital part of the body with such a force that
the person hit meets his death, knowledge has
to be imputed to the accused. In that situation
case will fall in Part II of Section 304 IPC as in
the present case."
(Emphasis supplied)
49. In Jai Prakash v. State (Delhi Admin.), (1991)
2 SCC 32, this Court, after an exhaustive review of
various decisions, more particularly, the principles laid
down in Virsa Singh's case (supra), concluded as
under:-
"18. In all these cases, injury by a
single blow was found to be sufficient in the
ordinary course of nature to cause death. The
Supreme Court took into consideration the
circumstances such as sudden quarrel,
grappling etc. as mentioned above only to
assess the state of mind namely whether the
accused had the necessary intention to cause
that particular injury i.e. to say that he desired
expressly that such injury only should be the
result. It is held in all these cases that there
was no such intention to cause that particular
injury as in those circumstances, the accused
could have been barely aware i.e. only had
knowledge of the consequences. These
circumstances under which the appellant
happened to inflict the injury it is felt or at least
a doubt arose that all his mental faculties could
not have been roused as to form an intention to
achieve the particular result. We may point out
that we are not concerned with the intention to
cause death in which case it will be a murder
simplicitor unless exception is attracted. We are
concerned under clause 3rdly with the intention
to cause that particular injury which is a
subjective inquiry and when once such intention
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is established and if the intended injury is found
objectively to be sufficient in the ordinary
course of nature to cause death, clause 3rdly is
attracted and it would be murder, unless one of
the exceptions to Section 300 is attracted. If on
the other hand this ingredient of 'intention' is
not established or if a reasonable doubt arises
in this regard then only it would be reasonable
to infer that clause 3rdly is not attracted and
that the accused must be attributed knowledge
that in inflicting the injury he was likely to cause
death in which case it will be culpable homicide
punishable under Section 304 Part II IPC."
(Emphasis supplied)
50. In the case of Rajwant Singh (supra), after
referring to the relevant clauses of Section 300 of the
IPC, the following observations have been made:-
"10. ... The mental attitude is thus made
of two elements (a) causing an intentional
injury and (b) which injury the offender has the
foresight to know would cause death....
11. ... For the application of clause
three it must ftrst be established that the injury
is caused, next it must be established
objectively what the nature of that injury in the
ordinary course of nature is. If the injury is
found to be sufficient to cause death, one test is
satisfted. Then it must be proved that there was
an intention to inflict that very Injury and not
some other injury and that it was not accidental
or unintentional. If this is also held against the
offender the offence of murder is established."
(Emphasis supplied)
51. In the case of Anda v. State of Rajasthan,
AIR 1966 SC 148, the two relevant Sections 299 and
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300 respectively are brilliantly analysed and the
relevant observations are made at page 151 in para 7.
Before we refer to those observations, we would refer to
certain observations made earlier. They are as under:-
"The offence ofculpable homicide involves the
doing of an act (which term includes illegal
omissions) (a) with the intention ofcausing
death, or (b) with the intention of causing such
bodily injury as is likely to cause death or (c)
with the knowledge that the act is likely to cause
death. If the death is caused in any of these
three circumstances, the offence of culpable
homicide is said to be committed....... Intention
and knowledge in the ingredients ofthe section
postulate the existence ofa positive mental
attitude and this mental condition is the special
mens rea necessary for the offence. The guilty
intention in the ftrst two conditions contemplates
the intended death of the person harmed or the
intentional causing of an injury likely to cause his
death.The knowledge in the third condition
contemplates knowledge of the death of the
person. Sec. 300 tells us when the offence is
murder and when it is culpable homicide not
amounting to murder. Sec. 300 begins by setting
out the circumstances when culpable homicide
turns out into murder which is punishable under
sec. 302 and the exceptions in the same section
tell us when offence is not murder but culpable
homicide not amounting to murder
punishable under sec. 304. Murder is an
aggravated form ofculpable homicide. The
existence ofone offour conditions turns culpable
homicide into murder while the special
exceptions reduce the offence of murder again to
culpable homicide not amounting to murder."
(Emphasis supplied)
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52. We will now refer to the relevant observations
made in para 10 at page 151. They are as under:-
"The third clause views the matter from a general
stand-point. It speaks of an intention to cause bodily
injury which is sufficient in the ordinary course of nature
to cause death. The emphasis here is on the sufficiency
of the injury in the ordinary course of nature to cause
death. The sufficiency is the high probability ofdeath in
the ordinary way ofnature and when this exists and
death ensues and the causing of such injury is intended
the offence is murder.
Sometimes the nature of the weapon used, sometimes
the part of the body on which the injury is caused, and
sometimes both are relevant. The determinant factor is
the intentional injury which must be sufficient to cause
death, that is to say, the probability of death is not so
high, the offence does not fall within murder but within
culpable homicide not amounting to murder or
something less. The illustration appended to the clause
3rdly reads:
'(c) A intentionally gives Z a sword-cut or club-
wound sufficient to cause the death of a man in the
ordinary course of nature. Z dies in consequence. Here
A is guilty of murder, although he may not have
intended to cause Z's death.' The sufficiency of an
intentional injury to cause death in the ordinary way
ofnature is the gist ofthe clause irrespective ofan
intention to cause death. Here again, the exceptions
may bring down the offence to culpable homicide not
amounting to murder."
(Emphasis supplied)
53. This Court in Vineet Kumar Chauhan v. State of
U.P., (2007) 14 SCC 660, noticed that theacademic
distinction between 'murder' and 'culpable homicide not
amounting to murder' had vividly been brought out by
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this Court in State of A.P. v. Rayavarapu Punnayya,
(1976) 4 SCC 382, where it was observed as under:-
"...that the safest way of approach to the
interpretation and application ofSections 299 and
300 of the Code is to keep in focus the key
words used in various clauses of the said
sections. Minutely comparing each of the clauses
of sections 299 and 300 of the Code and the
drawing support from the decisions of the court
in Virsa Singh v. State of Punjab, (AIR 1958 SC
465 : 1958 Cri LJ 818) and Rajwant Singh v.
State of Kerala, (AIR 1966 SC 1874 : 1966 Cri LJ
1509) speaking for the court, Justice RS
Sarkaria, neatly brought out the points of
distinction between the two offences, which have
been time and again reiterated. Having done so,
the court said that wherever the Court is
confronted with the question whether the offence
is murder or culpable homicide not amounting to
murder, on the facts of a case, it would be
convenient for it to approach the problem in
three stages. The question to be considered at
the ftrst stage would be that the accused has
done an act by doing which he has caused the
death of another. Two, if such causal connection
between the act of the accused and the death,
leads to the second stage for considering
whether that act of the accused amounts to
culpable homicide as deftned in section 299. If
the answer to this question is in the negative,
the offence would be culpable homicide not
amounting to murder, punishable under the First
or Second part of Section 304, depending
respectively, on whether this second or the third
clause of Section 299 is applicable. If this
question is found in the positive but the cases
come within any of the exceptions enumerated in
Section 300, the offence would still be culpable
homicide not amounting to murder, punishable
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under the ftrst part of Section 304 of the Code.
It was, however, clarifted that these were only
broad guidelines to facilitate the task of the court
and not cast-iron imperative."
(Emphasis supplied)
54. In the case of Tholan v. State of Tamil
Nadu, AIR 1984 SC 759, the accused stood in front of
the house of the deceased and used filthy language
against some persons who were unconnected with the
deceased. The deceased came out of his house and told
the accused that he should not use vulgar and filthy
language in front of ladies and asked him to go away.
The accused questioned the authority of the deceased to
ask him to leave the place. In the ensuing altercation,
the accused gave one blow with a knife which landed on
the (right) chest of the deceased which proved to be
fatal. This Court came to the conclusion that the
accused could not be convicted under Section 302, but
was guilty under Section 304 Part II. The circumstances
which weighed with this Court were : (i) there was no
connection between the accused and the deceased and
the presence of the deceased at the time of the
incident, was wholly accidental; (ii) altercation with the
deceased was on the spur of the moment and the
accused gave a single blow being enraged by the
deceased asking him to leave the place; (iii) the
requisite intention could not be attributed to the
accused as there was nothing to indicate that the
accused intended the blow to land on the right side of
the chest which proved to be fatal.
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55. In Chamru, Son of Budhwa v. State of
Madhya Pradesh, AIR 1954 SC 652, in somewhat similar
circumstances, where there was exchange of abuses
between the two parties both of whom were armed with
lathis, they came to blows and in the course of the fight
that ensued, the accused struck a lathi blow on the head
of the deceased which caused a fracture of the skull
resulting in the death. In view of the fact that the
accused had given only one blow in the heat of the
moment, it was held that all that can be said was that
he had given the blow with the knowledge that it was
likely to cause death and, therefore, the offence fell
under Section 304, Part II of the IPC. In Willie (William)
Slaney v. The State of Madhya Pradesh, AIR 1956 SC
116, there was, as here, a sudden quarrel leading to an
exchange of abuses and in the heat of the moment a
solitary blow with a hockey-stick had been given on the
head. The Court held that the offence amounted to
culpable homicide not amounting to murder punishable
under Section 304, Part II.
56. In Kulwant Rai v. State of Punjab, (1981) 4
SCC 245, the accused, without any prior enmity or
premeditation, on a short quarrel gave a single blow
with a dagger which later proved to be fatal. This Court
observed that since there was no premeditation, Part 3
of Section 300 of the IPC could not be attracted because
it cannot be said that the accused intended to inflict that
particular injury which was ultimately found to have
been inflicted. In the facts and circumstances of that
case, the conviction of the accused was altered from
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Section 302 to that under Section 304 Part II IPC and
the accused was sentenced to suffer rigorous
imprisonment for five years.
57. In Jagtar Singh v. State of Punjab, (1983) 2
SCC 342, the accused on the spur of the moment
inflicted a knife-blow on the chest of the deceased. The
injury proved to be fatal. The doctor opined that the
injury was sufficient in the ordinary course of nature to
cause death. This Court observed that: (SCC p. 344,
para 8):-
"8. ... The quarrel was ofa trivial nature and
even in such a trivial quarrel the appellant
wielded a weapon like a knife and landed a blow
in the chest. In these circumstances, it is a
permissible inference that the appellant at least
could be imputed with a knowledge that he was
likely to cause an injury which was likely to
cause death. ..."
(Emphasis supplied)
This Court altered the conviction of the appellant
from Section 302 IPC to Section 304 Part II IPC and
sentenced the accused to suffer rigorous imprisonment
for five years.
58. In Hem Raj v. State (Delhi Admn.), 1990 Supp
SCC 291, the accused inflicted single stab injury landing
on the chest of the deceased. The occurrence admittedly
had taken place on the spur of the moment and in heat
of passion upon a sudden quarrel. According to the
doctor the injury was sufficient in the ordinary course of
nature to cause death. This Court observed as under:
(SCC p. 295, para 14)"-
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"14. The question is whether the appellant
could be said to have caused that particular injury
with the intention of causing death of the
deceased. As the totality of the established facts
and circumstances do show that the occurrence
had happened most unexpectedly in a sudden
quarrel and without premeditation during the
course ofwhich the appellant caused a solitary
injury, he could not be imputed with the intention
to cause death of the deceased or with the
intention to cause that particular fatal injury; but
he could be imputed with the knowledge that he
was likely to cause an injury which was likely to
cause death. Because in the absence of any
positive proof that the appellant caused the death
of the deceased with the intention of causing death
or intentionally inflicted that particular injury which
in the ordinary course ofnature was sufficient to
cause death, neither clause I nor clause III of
Section 300 IPC will be attracted."
(Emphasis supplied)
This Court while setting aside the conviction
under Section 302 convicted the accused under Section
304 Part II and sentenced him to undergo rigorous
imprisonment for seven years.
59. We may lastly refer to the decision of this
Court in Pulicherla Nagaraju v. State of A.P., (2006) 11
SCC 444 : (2007) 1 SCC (Cri) 500, wherein this Court
enumerated some of the circumstances relevant to
finding out whether there was any intention to cause
death on the part of the accused. This Court observed :
(SCC pp. 457-58, para 29)
"29. Therefore, the court should proceed to
decide the pivotal question ofintention, with care
and caution, as that will decide whether the case
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falls under Section 302 or 304 Part I or 304 Part
II. Many petty or insigniftcant matters --
plucking of a fruit, straying of cattle, quarrel of
children, utterance of a rude word or even an
objectionable glance, may lead to altercations
and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases.
There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum,
there may be cases ofmurder where the accused
attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to
ensure that the cases of murder punishable
under Section 302, are not converted into
offences punishable under Section 304 Part I/II,
or cases ofculpable homicide not amounting to
murder, are treated as murder punishable
under Section 302. The intention to cause death
can be gathered generally from a combination of
a few or several of the following, among
other, circumstances : (i) nature of the weapon
used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the
body; (iv) the amount of force employed in
causing injury; (v) whether the act was in the
course ofsudden quarrel or sudden ftght or free
for all ftght; (vi) whether the incident occurs by
chance or whether there was any premeditation;
(vii) whether there was any prior enmity or
whether the deceased was a stranger; (viii)
whether there was any grave and sudden
provocation, and ifso, the cause for such
provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted
in a cruel and unusual manner; (xi) whether the
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accused dealt a single blow or several blows.The
above list of circumstances is, of course, not
exhaustive and there may be several other
special circumstances with reference to individual
cases which may throw light on the question of
intention."
(Emphasis supplied)
60. Few important principles of law discernible
from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question,
what offence the accused could be said to have
committed, the true test is to find out the intention or
knowledge of the accused in doing the act. If the
intention or knowledge was such as is described in
Clauses (1) to (4) of Section 300 of the IPC, the act will
be murder even though only a single injury was caused.
To illustrate : 'A' is bound hand and foot. 'B' comes and
placing his revolver against the head of 'A', shoots 'A' in
his head killing him instantaneously. Here, there will be
no difficulty in holding that the intention of 'B' in
shooting 'A' was to kill him, though only single injury
was caused. The case would, therefore, be of murder
falling within Clause (1) of Section 300 of the IPC.
Taking another instance, 'B' sneaks into the bed room of
his enemy 'A' while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B' forcibly plunges a
sword in the left chest of 'A' and runs away. 'A' dies
shortly thereafter. The injury to 'A' was found to be
sufficient in ordinary course of nature to cause death.
There may be no difficulty in holding that 'B'
intentionally inflicted the particular injury found to be
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caused and that the said injury was objectively sufficient
in the ordinary course of nature to cause death. This
would bring the act of 'B' within Clause (3) of Section
300 of the IPC and render him guilty of the offence of
murder although only single injury was caused.
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section
300 of the IPC, the act of the accused which would
otherwise be murder, will be taken out of the purview of
murder, if the accused's case attracts any one of the
five exceptions enumerated in that section. In the event
of the case falling within any of those exceptions, the
offence would be culpable homicide not amounting to
murder, falling within Part 1 of Section 304 of the IPC, if
the case of the accused is such as to fall within Clauses
(1) to (3) of Section 300 of the IPC. It would be offence
under Part II of Section 304 if the case is such as to fall
within Clause (4) of Section 300 of the IPC. Again, the
intention or knowledge of the accused may be such that
only 2nd or 3rd part of Section 299 of the IPC, may be
attracted but not any of the clauses of Section 300 of
the IPC. In that situation also, the offence would be
culpable homicide not amounting to murder under
Section 304 of the IPC. It would be an offence under
Part I of that section, if the case fall within 2nd part of
Section 299, while it would be an offence under Part II
of Section 304 if the case fall within 3rd part of Section
299 of the IPC.
(3) To put it in other words, if the act of an accused
person falls within the first two clauses of cases of
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culpable homicide as described in Section 299 of the IPC
it is punishable under the first part of Section 304. If,
however, it falls within the third clause, it is punishable
under the second part of Section 304. In effect,
therefore, the first part of this section would apply when
there is 'guilty intention,' whereas the second part
would apply when there is no such intention, but there
is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular
injury was intended, and objectively that injury was
sufficient in the ordinary course of nature to cause
death, the requirements of Clause 3rdly to Section 300
of the IPC, are fulfilled and the offence would be
murder.
(5) Section 304 of the IPC will apply to the following
classes of cases: (i) when the case falls under one or
the other of the clauses of Section 300, but it is covered
by one of the exceptions to that Section, (ii) when the
injury caused is not of the higher degree of likelihood
which is covered by the expression 'sufficient in the
ordinary course of nature to cause death' but is of a
lower degree of likelihood which is generally spoken of
as an injury 'likely to cause death' and the case does
not fall under Clause (2) of Section 300 of the IPC, (iii)
when the act is done with the knowledge that death is
likely to ensue but without intention to cause death or
an injury likely to cause death.
To put it more succinctly, the difference between the
two parts of Section 304 of the IPC is that under the
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first part, the crime of murder is first established and
the accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under the
second part, the crime of murder is never established at
all. Therefore, for the purpose of holding an accused
guilty of the offence punishable under the second part of
Section 304 of the IPC, the accused need not bring his
case within one of the exceptions to Section 300 of the
IPC.
(6) The word 'likely' means probably and it is
distinguished from more 'possibly'. When chances of
happening are even or greater than its not happening,
we may say that the thing will 'probably happen'. In
reaching the conclusion, the court has to place itself in
the situation of the accused and then judge whether the
accused had the knowledge that by the act he was likely
to cause death.
(7) The distinction between culpable homicide
(Section 299 of the IPC) and murder (Section 300 of the
IPC) has always to be carefully borne in mind while
dealing with a charge under Section 302 of the IPC.
Under the category of unlawful homicides, both, the
cases of culpable homicide amounting to murder and
those not amounting to murder would fall. Culpable
homicide is not murder when the case is brought within
the five exceptions to Section 300 of the IPC. But, even
though none of the said five exceptions are pleaded or
prima facie established on the evidence on record, the
prosecution must still be required under the law to bring
the case under any of the four clauses of Section 300 of
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the IPC to sustain the charge of murder. If the
prosecution fails to discharge this onus in establishing
any one of the four clauses of Section 300 of the IPC,
namely, 1stly to 4thly, the charge of murder would not
be made out and the case may be one of culpable
homicide not amounting to murder as described under
Section 299 of the IPC.
(8) The court must address itself to the question of
mens rea. If Clause thirdly of Section 300 is to be
applied, the assailant must intend the particular injury
inflicted on the deceased. This ingredient could rarely be
proved by direct evidence. Inevitably, it is a matter of
inference to be drawn from the proved circumstances of
the case. The court must necessarily have regard to the
nature of the weapon used, part of the body injured,
extent of the injury, degree of force used in causing the
injury, the manner of attack, the circumstances
preceding and attendant on the attack.
(9) Intention to kill is not the only intention that
makes a culpable homicide a murder. The intention to
cause injury or injuries sufficient in the ordinary cause
of nature to cause death also makes a culpable
homicide a murder if death has actually been caused
and intention to cause such injury or injuries is to be
inferred from the act or acts resulting in the injury or
injuries.
(10) When single injury inflicted by the accused
results in the death of the victim, no inference, as a
general principle, can be drawn that the accused did not
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have the intention to cause the death or that particular
injury which resulted in the death of the victim. Whether
an accused had the required guilty intention or not, is a
question of fact which has to be determined on the facts
of each case.
(11) Where the prosecution proves that the accused
had the intention to cause death of any person or to
cause bodily injury to him and the intended injury is
sufficient in the ordinary course of nature to cause
death, then, even if he inflicts a single injury which
results in the death of the victim, the offence squarely
falls under Clause thirdly of Section 300 of the IPC
unless one of the exceptions applies.
(12) In determining the question, whether an
accused had guilty intention or guilty knowledge in a
case where only a single injury is inflicted by him and
that injury is sufficient in the ordinary course of nature
to cause death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or that the
circumstances justify that the injury was accidental or
unintentional, or that he only intended a simple injury,
would lead to the inference of guilty knowledge, and the
offence would be one under Section 304 Part II of the
IPC.
61. We once again recapitulate the facts of this
case. On the fateful day of the incident, the father and
son were working in their agricultural field early in the
morning. They wanted to transport the crop, they had
harvested and for that purpose they had called for a
lorry. The lorry arrived, however, the deceased did not
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allow the driver of the lorry to use the disputed
pathway. This led to a verbal altercation between the
appellant and the deceased. After quite some time of
the verbal altercation, the appellant hit a blow on the
head of the deceased with the weapon of offence (weed
axe) resulting in his death in the hospital.
62. Looking at the overall evidence on record, we
find it difficult to come to the conclusion that when the
appellant struck the deceased with the weapon of
offence, he intended to cause such bodily injury as was
sufficient in the ordinary course of nature to cause
death. The weapon of offence in the present case is a
common agriculture tool. If a man is hit with a weed
axe on the head with sufficient force, it is bound to
cause, as here, death. It is true that the injuries shown
in the post mortem report are fracture of the parietal
bone as well as the temporal bone. The deceased died
on account of the cerebral compression i.e. internal
head injuries. However, the moot question is - whether
that by itself is sufficient to draw an inference that the
appellant intended to cause such bodily injury as was
sufficient to cause death. We are of the view that the
appellant could only be attributed with the knowledge
that it was likely to cause an injury which was likely to
cause the death. It is in such circumstances that we are
inclined to take the view that the case on hand does not
fall within clause thirdly of Section 300 of the IPC.
63. In the aforesaid view of the matter and more
particularly bearing the principles of law explained
aforesaid, the present appeal is partly allowed. The
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conviction of the appellant under Section 304 Part I of
the IPC is altered to one under Section 304 Part II of
the IPC. For the altered conviction, the appellant is
sentenced to undergo rigorous imprisonment for a
period of five years.
Appeal partly allowed."
24. In the case of Valthepu Srinivas Vs. State of Andhra
Pradesh - AIR 2024 SC 1050, it was held as under:
28. Even though, A-3 might not have had the
common intention to commit the murder, nevertheless,
his participation in the assault and the wielding of the
stone certainly makes him culpable for the offence that
he has committed. While we acquit A-3 of the offence
under Section 302 read with Section 34 of the IPC, he is
liable for the offence under 304 Part II IPC. The law on
Section 304 Part II has been succinctly laid down
in Camilo Vaz v. State of Goa, (2000) 9 SCC 1, where it
was held that:
14. This section is in two parts. If analysed, the
section provides for two kinds of punishment to
two different situations : (1) if the act by which
death is caused is done with the intention of
causing death or causing such bodily injury as is
likely to cause death. Here the important
ingredient is the "intention"; (2) if the act is done
with the knowledge that it is likely to cause death
but without any intention to cause death or such
bodily injury as is likely to cause death. When a
person hits another with a danda on a vital part of
the body with such force that the person hit meets
his death, knowledge has to be imputed to the
accused....
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29. In the past, this Court has considered factors
such as lack of medical evidence to prove whether the
act/injury was individually sufficient to cause death, a
single blow on head with a hammer and lack of cogent
evidence of the eye-witnesses that the accused shared a
common intention to commit murder as some factors to
commute a sentence from Section 302 to Section 304
Part II IPC.
30. Returning back to the facts of the case, there is
certainly no escape from coming to the conclusion that
A-3 should have had the knowledge that the use of a
stone to hit the head of the deceased is likely to cause
death. However, as demonstrated before, the evidence
is insufficient to deduce a conclusion that he shared a
common intention with the other accused to commit the
murder of the deceased. Considering the role that A-3
has played, we hold him guilty of the offence under
Section 304 Part II IPC.
31. The perusal of the evidence would reveal that it
is not the case of the prosecution that A-3 was along
with the other accused while the deceased was dragged
to the house. The deposition would reveal that after the
other accused assaulted the deceased with sword, A-3
came thereafter and assaulted the deceased with stone
lying there. We, therefore, find that the prosecution has
not been in a position to establish that A-3 shared the
common intention with the other accused to cause the
murder of the deceased.
32. For the reasons stated above, we uphold the
conviction and sentence of A-1, A-2 and A-4 under
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Section 302 read with Section 34 IPC and dismiss their
Criminal Appeal No. 2852 of 2023 against the judgment of the
High Court of Telangana in Criminal Appeal No. 308 of 2005
dated 26.04.2022. We acquit A-3 of the conviction and
sentence under Section 302 read with Section 34 and convict
him under Section 304 Part II and sentence him to undergo
imprisonment for 10 years. To this extent, the appeal of A-3
is allowed by altering the conviction under Section 302 to
Section 304 Part II IPC.
(emphasis supplied)
25. In the case of Hussain Bai Asgarali Lokhandwala
Vs. State of Gujarat, - AIR 2024 SC 3832 it was held as under:
24. We are in agreement with the view taken by
the High Court that the entire incident had occurred
in the heat of the moment and that neither party
could control their anger which ultimately resulted
into the fateful incident.
25. That being the position and since the High
Court had brought down the charge from Section 304
Part I IPC to Section 304 II IPC, we feel that it would
be in the interest of justice if the sentence of the
appellant Hussainbhai Asgarali Lokhandwala is further
modified to the period of incarceration already
undergone by him while maintaining the conviction.
26. Much water has flown down the river by this
time. The unfortunate incident leading to the loss of a
precious life and sustaining of injuries by a couple of
others had happened in a spur of the moment.
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Therefore, while concurring with the impugned
judgment of the High Court dated 06.05.2016 insofar
alteration of the conviction is concerned, we are of
the view that the sentence imposed upon the
appellant should be altered to the period of
incarceration already undergone by him. That being
the position, it is not necessary to delve into and
elaborate upon the other contentions raised at the
Bar.
27. Consequently, Criminal Appeal No. 1691 of
2023 is partly allowed. While maintaining the
conviction of the appellant Hussainbhai Asgarali
Lokhandwala under Section 304 Part II IPC, his
sentence is modified to the period already undergone
by him. All the other criminal appeals are, however,
dismissed.
26. As stated supra, if the material on record is
examined bearing in mind the principles enunciated in the
aforesaid judgments, it is evident that the accused cannot be
held to be guilty of the offence of murder within the meaning of
Section 300 IPC. On the other hand, the accused are clearly
guilty of culpable homicide not amounting to murder as
contemplated in Exception 1 and/or Exception 4 to Section 300
IPC and would be punishable under Section 304 Part II IPC and
sentenced appropriately.
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27. Under these circumstances, we are of the view that
the present appeal deserves to be partly allowed and the
impugned judgment passed by the Trial Court deserves to
modified by convicting and sentencing the appellant/accused
persons for offence of culpable homicide not amounting to
murder by invoking Section 304 Part II IPC and by issuing
appropriate directions in this regard.
28. In the result, we pass the following:
ORDER
i) The appeal is partly allowed.
ii) The impugned judgment of conviction and sentence
dated 25.03.2022 passed in S.C. No.76/2020 by the V
Additional District and Sessions Judge, Dharwad,
sitting at Hubballi, is hereby modified.
iii) The conviction and sentence of the appellants/accused
for the offences punishable under Section 302 IPC is
hereby set aside and the appellants are convicted for
offences punishable under Section 304 Part II IPC.
iv) The appellants are sentenced to undergo rigorous
imprisonment for a period of six years, and to pay fine
of Rs.25,000/- each and, upon default, to undergo R.I.
for a further period of one year each.
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v) The entire fine amount of Rs.50,000/- is directed to be
paid to P.W.1, Mehaboobsab Ibrahimsab Bikanabai,
the father of the deceased.
vi) Since the appellants have been in judicial custody from
12.03.2020 onwards, both the appellants would be
entitled to the benefit of set-off under Section 428
Cr.P.C.
vii) We place on record our gratitude and appreciation for
the valuable assistance rendered by learned counsel
Sri. L.S.Sullad, who assisted as an Amicus Curiae on
our request.
viii) The High Court Legal Services Committee, High Court
of Karnataka, Dharwad Bench, is directed to pay of
Rs.10,000/- to Sri. L.S.Sullad, learned Amicus Curiae
as a honorarium.
ix) Registry to intimate this order to the High Court Legal
Services Committee, Dharwad Bench, for compliance.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
KMS
Ct:VH
