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CASE NO.:

Appeal (crl.) 87 of 2004

PETITIONER:

Chacko alias Aniyan Kunju & Ors.

RESPONDENT:

State of Kerala

DATE OF JUDGMENT: 21/01/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.) No. 3634/2003)

ARIJIT PASAYAT,J.

Leave granted.

The four appellants faced trial for allegedly having

caused homicidal death of one Kuttappan (hereinafter

referred to as 'the deceased') on 16.6.1994. They were tried

for commission of offence punishable under Section 302 read

with Section 34 of Indian Penal Code, 1860 (in short 'the

IPC'). The learned Sessions Judge, Kottayam, found all the

four accused persons guilty and convicted and sentenced them

for the offence punishable under Section 302 read with

Section 34 IPC and sentenced each of them to undergo

imprisonment for life. Fine of Rs.10,000/- with default

stipulation was also imposed. The accused-appellants

unsuccessfully challenged their conviction and sentence

before the Kerala High Court which dismissed the same by the

impugned judgment.

Prosecution version as unfolded during trial is as

follows:

There was previous enmity between accused persons and

the deceased. In furtherance of their common intention

because of such enmity, the accused persons chased and

assaulted the deceased on 16.6.1994 at about 11 p.m. A-2

beat the deceased with an iron rod on his back and when

deceased ran away to save his life, all the accused persons

chased him and near a road side junction, A-4 lighted the

torch carried by him which enabled the other accused persons

to beat the deceased with handles of axe and spade, and iron

rod on different parts of the body. The injuries were

caused mostly on the hands, legs and ribs. Only one injury

was inflicted on the head which was the fatal injury.

Though the deceased was taken to the hospital he breathed

his last at about 2.25 a.m. on 17.6.1994. 10 witnesses were

examined to further the prosecution version. Rajan (PW-2)

was said to be an eyewitness. The information was lodged

with the police by Anil Kumar (PW-1). Soman (PW-3) was the

brother-in-law of the deceased who was informed about the

quarrel between deceased and the accused persons. The

deceased allegedly made a dying declaration before them

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implicating the accused persons. The accused persons pleaded

innocence. They pleaded that the actual occurrence was

suppressed by the prosecution and, in fact, the deceased

attacked them and caused injuries on A-1 and A-2. Since the

accused persons were attacked, they exercised their right of

private defence and tried to protect themselves and if on

account of that the deceased sustained injuries there was no

offence involved. Trial Court after analyzing the evidence

on record came to hold that the plea of right of private

defence was not established. A-1 to A-4 were the authors of

the crime. It also did not accept the contention of A-4 that

no overt act was attributed to him and there was no material

to bring him within the field of Section 34 IPC. The Trial

court held that evidence of PW-2 inspire confidence. He was

a reliable witness and on his evidence alone the conviction

has to be recorded, though additionally the dying

declaration was there.

In appeal, the Kerala High Court held that merely

because the accused persons have sustained some injuries,

that cannot ipso facto be a ground for throwing out the

prosecution case. Non-explanation of injuries on the accused

persons in all cases is not a ground for discarding the

prosecution version. It also did not find any substance in

the plea of the accused-appellants that on the basis of

solitary witness's evidence conviction cannot be recorded.

Finally, the plea that offence under Section 302 read with

Section 34 IPC was not made out did not find acceptance by

the High Court. It also did not accept the plea that there

was no material for applying Section 34 to A-4. It was

noticed that he was the person who focused the light on the

deceased, facilitating the assaults.

In support of the appeal, learned counsel for the

appellant submitted that the Trial Court and the High Court

have lost sight of relevant factors. The prosecution

version itself indicated that there was quarrel between the

deceased and the accused and since the assaults allegedly

took place in course of a sudden quarrel, that too in

exercise of right of private defence, the accused persons

should not have been found guilty. It was pointed out that

the prosecution version primarily stands on the solitary

evidence of PW-2. The occurrence, according to the

prosecution took place late in the night and it was

completely dark and necessitated focusing of torch by A-4.

These materials adduced by the prosecution go to show that

no particular injury was intended. In fact, the post-mortem

shows that injuries were on non-vital parts of the body.

The reference to these aspects was highlighted to

substantiate the plea that Section 302 has not attracted.

Alternatively, it is submitted that no offence under Section

34 IPC is made out and so far as accused A-4 is concerned,

as admittedly no assault was done by him and, therefore, he

should not have been convicted.

Per contra, learned counsel for the State submitted

that the Trial Court and the High Court have given adequate

reasons for finding the accused persons guilty and

sentencing them. As they have analysed the factual position

in great detail and have come to the conclusion regarding

guilt of the accused, there is no scope for any

interference. According to him the case is squarely covered

by Section 302 IPC.

Coming to the question whether on the basis of a

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solitary evidence conviction can be maintained. A bare

reference of Section 134 of the Indian Evidence Act, 1872

(in short 'the Evidence Act') would suffice. The provision

clearly states that no particular number of witnesses is

required to establish the case. Conviction can be based on

the testimony of single witness if he is wholly reliable.

Corroboration may be necessary when he is only partially

reliable. If the evidence is unblemished and beyond all

possible criticism and the Court is satisfied that the

witness was speaking the truth then on his evidence alone

conviction can be maintained. Undisputedly, there were

injuries found on the body of the accused persons on medical

evidence. That per se cannot be a ground to totally discard

the prosecution version. This is a factor which has to be

weighed along with other materials to see whether the

prosecution version is reliable, cogent and trustworthy.

When the case of the prosecution is supported by an

eyewitness who is found to be truthful, as well, mere non-

explanation of the injuries on the accused persons cannot be

a foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be

acceptable.

Other plea emphasized related to alleged exercise of

right of private defence. Merely because there was a quarrel

and two accused persons sustained injuries, that does not

confer a right of private defence extending to the extent of

causing death as in this case. Though such right cannot be

weighed in golden scales, it has to be established that the

accused persons were under such grave apprehension about the

safety of their life and property that retaliation to the

extent done was absolutely necessary. No evidence much less

cogent and credible was adduced in this regard. The right of

private defence as claimed by the accused persons have been

rightly discarded.

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 recognizes three degrees of culpable homicide.

The first is, what may be called, "culpable homicide of the

first degree". This is the gravest form of culpable

homicide, which is defined in Section 300 as "murder". The

second may be termed as "culpable homicide of the second

degree". This is punishable under the first part of Section

304. Then, there is "culpable homicide of the third degree".

This is the lowest type of culpable homicide and the

punishment provided for it is also the lowest among the

punishments provided for the three grades. Culpable homicide

of this degree is punishable under the second part of

Section 304.

The academic distinction between "murder" and "culpable

homicide not amounting to murder" has always vexed the

courts. The confusion is caused, if courts losing sight of

the true scope and meaning of the terms used by the

legislature in these sections, allow themselves to be drawn

into minute abstractions. The safest way of approach to the

interpretation and application of these provisions seems to

be to keep in focus the keywords used in the various clauses

of Sections 299 and 300. The following comparative table

will be helpful in appreciating the points of distinction

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between the two offences :

Section 299 Section 300

A person commits Subject to certain exceptions

culpable homicide if the act by culpable homicide is murder if the

the death is caused is act by which the death is caused

done - is done -

INTENTION

(a) with the intention of causing (1) with the intention of causing

death; or death; or

(b) with the intention (2) with the intention of causing

of causing such such bodily injury as the

bodily injury as is offender knows to be likely to

likely to cause death; or 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 (4) with the knowledge that the

knowledge that act is so imminently

the act is likely to dangerous that it must in all

cause death. 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 is mentioned above.

Clause (b) of Section 299 corresponds with clauses (2)

and (3) of Section 300. The distinguishing feature of the

mens rea requisite under clause (2) is the knowledge

possessed by the offender regarding the particular victim

being in such a peculiar condition or state of health that

the internal harm caused to him is likely to be fatal,

notwithstanding the fact that such harm would not in the

ordinary way of nature be sufficient to cause death of a

person in normal health or condition. It is noteworthy that

the "intention to cause death" is not an essential

requirement of clause (2). Only the intention of causing the

bodily injury coupled with the offender's knowledge of the

likelihood of such injury causing the death of the

particular victim, is sufficient to bring the killing within

the ambit of this clause. This aspect of clause (2) is borne

out by Illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such

knowledge on the part of the offender. Instances of cases

falling under clause (2) of Section 300 can be where the

assailant causes death by a fist-blow intentionally given

knowing that the victim is suffering from an enlarged liver,

or enlarged spleen or diseased heart and such blow is likely

to cause death of that particular person as a result of the

rupture of the liver, or spleen or the failure of the heart,

as the case may be. If the assailant had no such knowledge

about the disease or special frailty of the victim, nor an

intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death, the offence will

not be murder, even if the injury which caused the death,

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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

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 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.

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 (AIR 1966 SC 1874)

is an apt illustration of this point.

In Virsa Singh v. State of Punjab (AIR 1958 SC 465)

Vivian Bose, J. speaking for the Court, explained the

meaning and scope of clause (3). It was observed that the

prosecution must prove the following facts before it can

bring a case under Section 300 "thirdly". First, it must

establish quite objectively, that a bodily injury is

present; secondly, the nature of the injury must be proved.

These are purely objective investigations. Thirdly, it must

be proved that there was an intention to inflict that

particular injury, that is to say, that it was not

accidental or unintentional or that some other kind of

injury was intended. Once these three elements are proved to

be present, the enquiry proceeds further, and fourthly, it

must be proved that the injury of the type just described

made up of the three elements set out above was sufficient

to cause death in the ordinary course of nature. This part

of the enquiry is purely objective and inferential and has

nothing to do with the intention of the offender.

The ingredients of clause "thirdly" of Section 300 IPC

were brought out by the illustrious Judge in his terse

language as follows :

"12. To put it shortly, the prosecution must

prove the following facts before it can

bring a case under Section 300 'thirdly';

First, it must establish, quite objectively,

that a bodily injury is present;

Secondly, the nature of the injury must be

proved; These are purely objective

investigations.

Thirdly, it must be proved that there was an

intention to inflict that particular bodily

injury, that is to say, that it was not

accidental or unintentional, or that some

other kind of injury was intended.

Once these three elements are proved to be

present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury

of the type just described made up of the

three elements set out above is sufficient

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to cause death in the ordinary course of

nature. This part of the enquiry is purely

objective and inferential and has nothing to

do with the intention of the offender."

The learned Judge explained the third ingredient in the

following words (at page 468):

"The question is not whether the prisoner

intended to inflict a serious injury or a

trivial one but whether he intended to

inflict the injury that is proved to be

present. If he can show that he did not, or

if the totality of the circumstances justify

such an inference, then, of course, the

intent that the section requires is not

proved. But if there is nothing beyond the

injury and the fact that the appellant

inflicted it, the only possible inference is

that he intended to inflict it. Whether he

knew of its seriousness, or intended serious

consequences, is neither here 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."

These observations of Vivian Bose, J. have become locus

classicus. The test laid down by Virsa Singh case (supra)

for the applicability of clause "thirdly" is now ingrained

in our legal system and has become part of the rule of law.

Under clause thirdly of Section 300 IPC, culpable homicide

is murder, if both the following conditions are satisfied

i.e. (a) that the act which causes death is done with the

intention of causing death or is done with the intention of

causing a bodily injury; and (b) that the injury intended to

be inflicted is sufficient in the ordinary course of nature

to cause death. It must be proved that there was an

intention to inflict that particular bodily injury which, in

the ordinary course of nature, was sufficient to cause death

viz. that the injury found to be present was the injury that

was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh

case (supra) 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.

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

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probability, the act having been committed by the offender

without any excuse for incurring the risk of causing death

or such injury as aforesaid.

The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate

the task of the court. But sometimes the facts are so

intertwined and the second and the third stages so

telescoped into each, that it may not be convenient to give

a separate and clear cut treatment to the matters involved

in the second and third stages.

The position was illuminatingly highlighted by this

Court in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC

382 and Abdul Waheed Khan alias Waheed and ors. v. State of

A.P. (2002 (7) SCC 175).

The factual scenario goes to show that late at night in

a stage of complete darkness, the occurrence took place.

According to the prosecution itself for visibility A-4 used

the torch and focused the light on the deceased so that the

other accused persons could assault him. The distance from

which the light was focused is also not very small. It was

no doubt possible on the part of the accused persons to

place the deceased and assault him; but taking into account

the fact that almost all the injuries were on non-vital

parts and only one was on head, it cannot be definitely said

that any particular injury was intended. As noticed by

Courts below weapons used were not of considerable weight or

length. They axe or spade was not used but their handles of

small length and weight were used. Taking the totality of

the evidence into consideration and the special features

noticed, it would be appropriate to convict the accused

persons under Section 304 Part I read with Section 34 IPC

instead of Section 302 IPC. A-4 has been rightly roped in

under Section 34. He accompanied the accused persons, and

actively facilitated the assaults to be effectively made on

the accused by focusing the torch. His conduct prior and

subsequent to the occurrence clearly shows that he shared

the common intention so far as the assaults on the deceased

is concerned. Custodial sentence of 10 years would meet the

ends of justice. The appeal is partly allowed to the extent

indicated.