REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 754 OF 2008

(Arising out of SLP (Crl.) No.1241 of 2007)

Kesar Singh & Anr. … Appellants

Versus

State of Haryana … Respondent

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

Fact

2.Hardev Singh was a resident of Derabassi. He was a teacher. He,

along with Karam Chand, came to village Budhanpur to meet his father on

24.4.1988. There was a vacant land in front of their house which was in

possession of Pala Ram and others. It was a Shamlat land. They were

digging foundation. Ujjagar Singh, father of Hardev Singh, asked them to

leave some passage for their house whereupon Pala Ram exhorted that the

old man should be taught a lesson. Ujjagar Singh shouted for help.

Appellant and Karam Chand, on hearing his shouts came out. They saw

Kesar Singh giving a Kassi (Spade) blow from the reverse side on the head

of Hardev Singh’s father. He fell down. He was taken to primary health

centre. He was referred to the General Hospital. However, on 30.4.1988,

his condition having deteriorated, he was referred to Medical Sciences and

Research, Chandigarh for treatment. He succumbed to his injuries on

1.5.1988.

Proceedings

3.Appellants were charged for commission of an offence under Section

302/34 of the Indian Penal Code. The learned Sessions Judge accepted the

prosecution case. He, however, opined that no case under Section 302 of

the Indian Penal Code was made out, stating :

“I, however, find force in the contention of learned

defence counsel that the case in hand does not fall

within ambit of Section 302 of the Indian Penal

Code. It is admitted case of the prosecution that

the occurrence was not the result of pre-

meditation. The accused were filling foundation

on the shamlat-street which was objected to by the

deceased. There was a sudden fight and heat of

2

passion accused Kesar Singh gave kassi blow on

the head of Ujjagar Singh on the exhortation of

Pala Ram accused. It was a single blow and that

too from the blunt side of the Kassi. The crime

committed by the accused is culpable homicide not

amounting to murder as envisaged by Section 300

(Exception-4) IPC, punishable under Section 304-I

of the Indian Penal Code.”

4.On an appeal having been preferred thereagainst, a learned Single

Judge of the High Court, while relying on the decision of this Court in Virsa

Singh v. State of Punjab [AIR 1958 SC 465] as also in Shankar Narayan

Bhadolkar v. State of Maharashtra [(2005) (9) SCC 71], opined :

“Applying the principles of law, as noticed

hereinafter, I am of the considered opinion, that

the offence committed by the appellants does not

fall within the definition of Section 300 of the

IPC, nor does it fall within the definition of

offence, punishable under Section 304II of the

Indian Penal Code. In my considered opinion, the

learned trial Court rightly held that the nature of

the offence, falls within the definition of Section

304-I of the IPC Section 304 deals with situations,

where culpable homicide does not amount to

murder, i.e. does not fall within the definition of

murder, as contained in Section 300 of the IPC.

Section 304 is sub-divided into two parts. If an

injury is inflicted with the knowledge and

intention that it is likely to cause death, but with

no intention to cause death the offence would fall

within the definition of Section 304-I, however, if

there is no intention to cause such an injury, but

there is knowledge that such an injury can cause

death, the offence would fall within the definition

3

of Section 304-II. Thus, is intention. If intention

to cause such an injury as is likely to cause death,

is established, the offence would fall under Part-I

but where no such intention is established and

only knowledge that the injury is likely to cause

death, it would fall under Part-II.”

It was, however, observed :

“However, the nature of the injury, the weapon of

offence, the intention and knowledge of the

assailants, in my considered opinion, clearly

places the offence as one under Section 304-I of

the IPC. Appellant No.1 inflicted the injury with

knowledge and intention that the injury, if

inflicted is likely to cause death, but with no

intention to cause death. However, as from the

facts and circumstances of the present case, and

the fact that it was a sudden fight, a single blow

inflicted with the reverse side of a Kassi, it cannot

be stated that he had an intention to cause death,

as required to make out an offence under Section

300 of the IPC.”

Contentions

5.Mr. Dinesh Verma, learned counsel appearing on behalf of the

appellant, would submit that the very fact that the fight was a sudden one

and single blow has been inflicted with the reverse side of a Kassi, the case

would fall under Section 304 Part-II of the Indian Penal Code (for short,

‘the Code’) and not Part-I thereof.

4

6.Mr. Rajeev Gaur ‘Naseem’, learned counsel appearing on behalf of

the respondent, on the other hand, would contend that even in a situation of

this nature, Part-I of Section 304 would apply.

The Statute

7.Chapter XVI of the Code deals with offences affecting the human

body. Section 299 defines ‘culpable homicide’. Section 300, on the other

hand, defines ‘murder’. Several exceptions are curved out therefrom.

Exceptions specified therein are also subject to certain exceptions as

contained in the provisos appended thereto; one of them is when the

offender commits the murder whilst deprived of the power of self-control by

grave and sudden provocation causing the death of the deceased. The

second exception deals with exceeding the power in exercise in good faith

or the right of private defence of the person or property on the part of the

accused.

Exception 3 applies to a public servant of aiding another public

servant with which we are not concerned.

Exception 4 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

5

and without the offender 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.”

We may now notice Section 304 of the Code. When an offence

comes within the four corners of Section 299 of the Code, culpable

homicide would not amount to murder.

Section 300, however, although defines what would amount to

culpable homicide amounting to murder, as indicated hereinbefore, contains

several exceptions.

Distinction

8.The distinction between the first part and the second part of Section

304 of the Indian Penal Code, therefore, must be considered having regard

to the provisions contained in Sections 299 and 300 of the Indian Penal

Code. Clause (a) of Section 299 corresponds to clause (1) of Section 300,

clause (b) of Section 299 corresponds with clauses (2) and (3) of Section

300 and clause (c) of Section 299 corresponds with clause (4) of Section

300 of the Code.

6

This can best be understood if Sections 299 and 300 of the Code are

noticed side by side :

“A person commits culpable

homicide, if the act by which the

death is caused is done

Subject to certain exceptions

culpable homicide is murder, if the

act by which the death is caused is

done

(a)With the intention of causing

death

(1) With the intention of causing

death

(b)With the intention of causing

such bodily injury as is likely to

cause death

(2)With the intention of causing

such bodily injury as the

offender knows to be likely to

cause the death of the person to

whom the harm is caused.

(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 of

cause death.

(c)With the knowledge that…. The

act is likely to cause death

(4)With the knowledge that the act

is so immediately dangerous

that it must in all probability

cause death, or such bodily

injury as is likely to cause death,

and there is no excuse for

incurring the risk.

9.The distinguishing feature is the mens rea. What is pre-requisite in

terms of clause (2) of Section 300 is the knowledge possessed by the

offender in regard to the particular victim being in such a peculiar condition

or state of health that the intentional harm caused to him is likely to be fatal.

Intention to cause death is not an essential ingredient of clause (2). When

7

there is an intention of causing a bodily injury coupled with knowledge of

the offender as regards likelihood of such injury being sufficient to cause

the death of a particular victim would be sufficient to bring the offence

within the ambit of this clause.

10.For determination of the said question, it would be convenient if the

exceptions contained in Section 300 are taken into consideration as if the

case falls under the said exceptions, there would not be any question of

applicability of the main provision of Section 300 of the Indian Penal Code.

11.The distinction between culpable homicide amounting to murder and

not amounting to murder is well known. Culpable homicide is genus,

murder is its specie. The culpable homicide, excluding the special

characteristics of murder, would amount to culpable homicide not

amounting to murder. The Code recognizes three degrees of culpable

homicide. When a culpable homicide is of the first degree, it comes within

the purview of the definition of Section 300 and it will amount to murder.

The second degree which becomes punishable in the first part of Section

304 is culpable homicide of the second degree. Then there is culpable

homicide of third degree which is the least side of culpable homicide and

the punishment provided for is also the lowest among the punishments for

the three grades. It is punishable under the second part of Section 304.

8

12.The questions which are required to be posed are –

(1) Whether the bodily injuries found on the deceased were intentionally

inflicted by the accused; and if so,

(2) Whether they were sufficient to cause death in the ordinary course of

nature.

If both these elements are satisfied, the same would amount to

murder. However, when the court is beset with a question as to whether the

offence is murder or culpable homicide not amounting to murder, the fact

involved must be examined having regard to : (1) whether the accused has

done an act which caused the death of another; (2) if a causal connection is

found between the act of the deceased and the death, the relevant question

would be whether the act of the accused amounts to culpable homicide as

defined in Section 299; and (3) if the answer thereto again is found to be in

affirmative, the question would be whether in the facts of this case, Section

300 or any of the exceptions contained therein would be attracted. In this

case, it has been found by both the courts that the offence committed by the

accused does not amount to culpable homicide amounting to murder. The

difficulty, thus, arises herein in applying thirdly of Section 300, vis-à-vis

exception 4 thereto.

9

Precedents

13.We must begin with the decision of King v. Aung Nyun [191 IC 306

(FB)] where it was observed “it does not follow that a case of culpable

homicide is murder because it does not fall within any of the exceptions of

Section 300. To render culpable homicide as murder, the case must come

within the provisions of clause (1) or (2) or (3) or (4) of Section 300.”

Whereas Section 299 defines the offence of culpable homicide, Section 300

defines the circumstances in which the offence of culpable homicide will, in

absence of exceptions laid down therein, amount to murder.

14.Culpable homicide may be classified in three categories – (1) in

which death is caused by the doing of an act with the intention of causing

death; (2) when it is committed by causing death with the intention of

causing such bodily injury as is likely to cause death; and (3) where the

death is caused by an act done with the knowledge that such act is likely to

cause death.

A note of caution at this juncture must be stated. Knowledge and

intention should not be confused. Section 299 in defining first two

categories does not deal with the knowledge whereas it does in relation to

the third category. It would also be relevant to bear in mind the import of

10

the terms “likely by such act to cause death”. Herein again lies a distinction

as ‘likely’ would mean probably and not possibly. When an intended injury

is likely to cause death, the same would mean an injury which is sufficient

in the ordinary course of nature to cause death which in turn would mean

that death will be the most probable result.

A.Virsa Singh Standard

15.The locus classicus operating in the field is Virsa Singh (supra). We

may notice the judgment at some details :

Facts : In Virsa Singh, the appellant therein was sentenced to

imprisonment for life under Section 302 I.P.C. There was only one injury on

the deceased and that was attributed to him. It was caused as a result of the

spear thrust and the Doctor opined that the injury was sufficient in the

ordinary course of nature to cause death. The Courts also found that the

whole affair was sudden and occurred on a chance meeting. Peritonitis also

supervened which hastened the death of the deceased. It was contended that

the prosecution has not proved that there was an intention to inflict a bodily

injury that was sufficient to cause death in the ordinary course of nature and

therefore the offence was not one of murder. This contention was rejected.

We may notice the findings under different heads :

11

1. What must the prosecution prove?

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.

2.The Standard Laid Down

It was said that the intention that the section requires must be related,

not only to the bodily injury inflicted, but also to the clause, “and the bodily

injury intended to be inflicted is sufficient in the ordinary course of nature

to cause death.”

12

This is a favourite argument in this kind of case but may not be

entirely correct. If there is an intention to inflict an injury that is sufficient to

cause death in the ordinary course of nature, then the intention is to kill and

in that event, the "thirdly" would be unnecessary because the act would fall

under the first part of the section, namely -

"If the act by which the death is caused is done

with the intention of causing death."

In our opinion, the two clauses are disjunctive and separate. The first

is subjective to the offender:

"If it is done with the intention of causing bodily

injury to any person."

It must, of course, first be found that bodily injury was caused and the

nature of the injury must be established, that is to say, whether the injury is

on the leg or the arm or the stomach, how deep it penetrated, whether any

vital organs were cut and so forth. These are purely objective facts and leave

no room for inference or deduction : to that extent the enquiry is objective;

13

but when it comes to the question of intention, that is subjective to the

offender and it must be proved that he had an intention to cause the bodily

injury that is found to be present.

Once that is found, the enquiry shifts to the next clause -

"and the bodily injury intended to be inflicted is

sufficient in the ordinary course of nature to cause

death."

The first part of this is descriptive of the earlier part of the section,

namely, the infliction of bodily injury with the intention to inflict it, that is

to say, if the circumstances justify an inference that a man's intention was

only to inflict a blow on the lower part of the leg, or some lesser blow, and

it can be shown that the blow landed in the region of the heart by accident,

then, though an injury to the heart is shown to be present, the intention to

inflict an injury in that region, or of that nature, is not proved. In that case,

the first part of the clause does not come into play. But once it is proved that

there was an intention to inflict the injury that is found to be present, then

the earlier part of the clause we are now examining - “and the bodily injury

intended to be inflicted” is merely descriptive.

14

All it means is that it is not enough to prove that the injury found to

be present is sufficient to cause death in the ordinary course of nature; it

must in addition be shown that the injury is of the kind that falls within the

earlier clause, namely, that the injury found to be present was the injury that

was intended to be inflicted. Whether it was sufficient to cause death in the

ordinary course of nature is a matter of inference or deduction from the

proved facts about the nature of the injury and has nothing to be with the

question of intention.

In considering whether the intention was to inflict the injury found to

have been inflicted, the enquiry necessarily proceeds on broad lines as, for

example, whether there was an intention to strike at a vital or a dangerous

part of the body, and whether with sufficient force to cause the kind of

injury found to have been inflicted. It is, of course, not necessary to inquire

into every last detail as, for instance, whether the accused intended to have

the bowels fall out, or whether he intended to penetrate the liver or the

kidneys or the heart. Otherwise, a man who has no knowledge of anatomy

could never be convicted, for, if he does not know that there is a heart or a

kidney or bowels, he cannot be said to have intended to injure them. Of

course, that is not the kind of enquiry. It is broad based and simple and

15

based on commonsense : the kind of enquiry that “an ordinary man” could

readily appreciate and understand.

To put it shortly, the prosecution must prove the following facts

before it can bring a case under Section 300, "3rdly":

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

present;

Secondly, the nature of the injury must be proved; These are purely

objective investigations.

Thirdly, it must be proved that there was an intention to inflict that

particular bodily injury, that is to say, that it was not accidental or

unintentional, or that some other kind of injury was intended.

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

16

the ordinary course of nature. This part of the enquiry is purely objective

and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and,

indisputably, the burden is on the prosecution throughout) the offence is

murder under Section 300, “3rdly”. It does not matter that there was no

intention to cause death. It does not matter that there was no intention even

to cause an injury of a kind that is sufficient to cause death in the ordinary

course of nature (not that there is any real distinction between the two). It

does not even matter that there is no knowledge that an act of that kind will

be likely to cause death. Once the intention to cause the bodily injury is

actually found to be proved, the rest of the enquiry is purely objective and

the only question is whether, as a matter of purely objective inference, the

injury is sufficient in the ordinary course of nature to cause death. No one

has a licence to run around inflicting injuries that are sufficient to cause

death in the ordinary course of nature and claim that they are not guilty of

murder. If they inflict injuries of that kind, they must face the consequences;

and they can only escape if it can be shown, or reasonably deduced that the

injury was accidental or otherwise unintentional.”

B. The Different Views

17

Hence, the question of whether the injury is sufficient in the ordinary

course of nature to cause death is an objective enquiry. The accused need

not have knowledge as whether the injury he intended to cause would have

been sufficient in the ordinary course of nature to cause death. This is the

position the Court took in the Virsa Singh case .

Unfortunately, the proportions in Virsa Singh have not been rigidly

followed subsequently. For example, in State of Andhra Pradesh v.

Rayavarapu Punnayya and Anr, [(1976) 4 SCC 382], the enquiry became

one of whether the accused intended to cause the ultimate internal injury

that led to death i.e. the Court inferred, from the surrounding facts and

circumstances in that case that the accused had intended to cause the

hemorrhage etc that ultimately led to death.

This position is somewhat contrary to Vivien Bose, J’s

pronouncements in Virsa Singh.

The following Para in Virsa Singh is illustrative :

“…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

18

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,

it neither here nor there. The question, so far as the

intention is concerned, is not whether he intended

to kill, or to inflict an injury of a particular degree

of seriousness, but whether he intended to inflict

the injury in question; and once the existence of

the injury is proved the intention to cause it will be

presumed unless the evidence or the circumstances

warrant an opposite conclusion. But whether the

intention is there or not is one of fact and not one

of law. Whether the wound is serious or otherwise,

and if serious, how serious, is a totally separate

and distinct question and has nothing to do with

the question whether the prisoner intended to

inflict the injury in question.”

Another passage which is relevant for our purpose reads, thus:

“…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.

19

The difference is not one of law but one of fact;

and whether the conclusion should be one way or

the other is a matter of proof, where necessary, by

calling in aid all reasonable inferences of fact in

the absence of direct testimony. It is not one for

guess-work and fanciful conjecture.”

The Jayaprakash Case brings the law back to the Virsa Singh position.

I.PRESUMPTION AS REGARDS INTENTION

Let us place on record the different approaches in the two

decisions. In Virsa Singh:

“In the absence of evidence, or reasonable

explanation, that the prisoner did not intend to stab

in the stomach with a degree of force sufficient to

penetrate that far into the body, or to indicate that

his act was a regrettable accident and that he

intended otherwise, it would be perverse to

conclude that he did not intend to inflict the injury

that he did. Once that intent is established (and no

other conclusion is reasonably possible in this case

and in any case it is a question of fact), the rest is a

matter for objective determination from the

medical and other evidence about the nature and

seriousness of the injury.”

20

In Jayaprakash:

“In Clause Thirdly the words "intended to be

inflicted" are significant. As noted already, when a

person commits an act, he is presumed to expect the

natural consequences. But from the mere fact that the

injury caused is sufficient in the ordinary course of

nature to cause death it does not necessarily follow

that the offender intended to cause the injury of that

nature. However, the presumption arises that he

intended to cause that particular injury.”

II.EVIDENCE TO BE CONSIDERED

In Jayaprakash:

“In such a situation the Court has to ascertain

whether the facts and circumstances in the case are

such as to rebut the presumption and such facts

and circumstances cannot be laid down in an

abstract rule and they will (sic) vary from case to

case. However, as pointed (sic) in Virsa Singh's

case 1958 SCR 1495 the weapon used, (sic)ree of

force released in wielding it, (sic)edent relations of

the parties, the (sic)which the attack was made that

is to say sudden or premeditated, whether the

injury was inflicted during a struggle or grappling,

the number of injuries inflicted and their nature

and the part of the body where the injury was

inflicted are some of the relevant factors. These

and other factors which may arise in a case have to

be considered and if on a totality of these

circumstances a doubt arises as to the nature of the

offence, the benefit has to go to the accused…

21

…The 'intention' and 'knowledge' of the

accused are subjective and invisible states of mind

and their existence has to be gathered from the

circumstances, such as the, weapon used, the

ferocity of attack, multiplicity of injuries and all

other surrounding circumstances.”

16.Shifting the inquiry to the next clause ‘and the bodily injury intended

to be inflicted is sufficient in the ordinary course of nature to cause death’, it

was held :

“In considering whether the intention was to inflict

the injury found to have been inflicted, the enquiry

necessarily proceeds on broad lines as, for

example, whether there was an intention to strike

at a vital or a dangerous spot, and whether with

sufficient force to cause the kind of injury found to

have been inflicted. It is, of course, not necessary

to enquire into every last detail as, for instance,

whether the prisoner intended to have the bowels

fall out, or whether he intended to penetrate the

liver or the kidneys or the heart. Otherwise, a man

who has no knowledge of anatomy could never be

convict, for, if he does not know that there is a

heart or a kidney or bowels, he cannot be said to

have intended to injure them. Of course, that is not

the kind of enquiry. It is broad-based and simple

and based on commonsense; the kind of enquiry

that 'twelve good men and true' could readily

appreciate and understand.”

22

17.In determining the question even the manner in which the injury was

inflicted and his knowledge as to whether it would be a severe one or a

serious one would also be a relevant factor. (See also State of Andhra

Pradesh v. Rayavarapu Punnayya & Anr. [(1976) 4 SCC 382].

18.In a case where the death occurred after nine days, this Court opined

that the prosecution failed to objectively prove the injury sufficient to cause

death in the ordinary course of nature. [See Jayraj v. State of Tamil Nadu

[(1976) 2 SCC 788].

19.For the said purpose, the circumstances surrounding the incident

would also be relevant. In Patel Rasiklal Becharbhai & Ors. v. State of

Gujarat [1993 Supp.(1) SCC 217] and Gurdeep Singh v. Jaswant Singh &

Ors. [1992 Supp.(3) SCC 103], in a situation of this nature, this Court held

Part-II of Section 304 to be applicable.

Knowledge v. Intention

20.We must keep in mind the distinction between knowledge and

intention. Knowledge in the context of Section 299 would, inter alia, mean

consciousness or realization or understanding. The distinction between the

terms ‘knowledge’ and ‘intention’ again is a difference of degrees. An

23

inference of knowledge that it is likely to cause death must be arrived at

keeping in view the fact situation obtaining in each case. The accused must

be aware of the consequences of his act.

21.Knowledge denotes a bare state of conscious awareness of certain

facts in which the human mind might itself remain supine or inactive

whereas intention connotes a conscious state in which mental faculties are

roused into activity and summed up into action for the deliberate purpose of

being directed towards a particular and specific end which the human mind

conceives and perceives before itself.

This was discussed extensively in Jai Prakash v. State (Delhi

Administration) [(1991) 2 SCC 32], stating :

“…We may note at this state that 'intention' is

different from 'motive' or 'ignorance' or

'negligence'. It is the 'knowledge' or 'intention'

with which the act is done that makes difference,

in arriving at a conclusion whether the offence is

culpable homicide or murder. Therefore, it is

necessary to know the meaning of these

expressions as used in these provisions...

…The 'intention' and 'knowledge' of the accused

are subjective and invisible states of mind and

their existence has to be gathered from the

circumstances, such as the, weapon used, the

ferocity of attack, multiplicity of injuries and all

other surrounding circumstances. The framers of

24

the code designedly used the words 'intention' and

'knowledge' and it is accepted that the knowledge

of the consequences which may result in doing an

act is not the same thing as the intention that such

consequences should ensue. Firstly, when an act is

done by a person, it is presumed that he must have

been aware that certain specified harmful

consequences would or could follow. But that

knowledge is bare awareness and not the same

thing as intention that such consequences should

ensue. As compared to 'knowledge', 'intention'

requires something more than the mere foresight

of the consequences, namely the purposeful doing

of a thing to achieve a particular end.”

Kenny in "Outlines of Criminal Law" (17th Edition at page 31) has

observed:

Intention: To intend is to have in mind a fixed purpose to

reach a desired objective; the noun 'intention' in the

present connection is used to denote the state of mind of

a man who not only foresees but also desires the possible

consequences of his conduct. Thus if one man throws

another from a high tower or cuts off his head it would

seem plain that he both foresees the victim's death and

also desires it: the desire and the foresight will also be

the same if a person knowingly leaves a helpless invalid

or infant without nourishment or other necessary support

until death supervenes. 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.

25

Again, a man cannot intend to do a thing unless he desires to do it. It

may well be a thing that he dislikes doing, but he dislikes still more the

consequences of his not doing it. That is to say he desires the lesser of two

evils, and therefore has made up his mind to bring about that one.

Russell on Crime (12th Edition 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 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.”

It can thus be seen that the 'knowledge' as contrasted with 'intention'

signifies a state of mental realisation with the bare state of conscious

awareness of certain facts in which human mind remains supine or inactive.

On the other hand, 'intention' is a conscious state in which mental faculties

are aroused into activity and summoned into action for the purpose of

achieving a conceived end. It means shaping of one's conduct so as to bring

about a certain event. Therefore in the case of 'intention' mental faculties are

projected in a set direction. Intention need not necessarily involve

premeditation. Whether there is such an intention or not is a question of

fact.

26

Law Applicable in this case

22.Keeping in view the aforementioned legal principles in mind, we may

notice the facts of the present case.

In the instant case, the reverse side of a kassi was used by the accused

to hit the deceased on his head, a vital part of the body . The force with

which these injuries were inflicted cannot be disputed either given the

internal injuries these led to death as would appear from the injury report as

also post mortem report which read as under :

“1.Lacerated wound 3cm x ½ cm x 1 cm

present on the left frontal region of the

skull. Margin of the injury was irregular

and injury was about 3 inches above the

medical end of left eye brow. This injury

was present over a contusion about 2 inches

x 2 inches reddish blue in condition. Patient

was referred to General Hospital, Sector 16,

Chandigarh for X-ray skull and observation.

2.Contusion 2” x 1” present over the upper

right eye bluish in colouration.

3.Complaints of pain over right shoulder.

Tenderness positive

XXX XXX XXX

27

1)Black eye right with contusion all around.

2)Stitched wound scalp right side 1 inch in size.

3)Fracture of the frontal bone right side. With extra dural

and subdural hemorrhage. But hole on the right temper

of parietal area. Stomach was empty. Rest of the organs

were normal. In my opinion cause of death was shock

and hemorrhage due to head injury. Injury was anti

mortem in nature and was sufficient to cause death in the

ordinary course of nature.”

Further, the exhortation by the accused, just before he struck the

deceased, that he needed to teach the deceased a lesson, also shows that he

intended to hit him on the head.

Hence, looking at all these facts and circumstances, intention to cause

the bodily injury in question is proved.

Further, due to the inapplicability of Explanation 4, there is nothing

on facts to rebut this presumption of intention.

Hence, the first part of S.300 “Thirdly” is proved.

The land belongs to the accused. The title is not in dispute. They had

a right over the land. They could excavate the same. The quarrel started

28

because the deceased wanted them to leave some passage. Both the courts

have held that it was a sudden fight which does not appear to be wholly

correct.

The word “fight” is used to convey something more than a verbal

quarrel. It postulates a bilateral transaction in which blows are exchanged.

In order to constitute a fight, it is necessary that blows should be exchanged

even if they all do not find their target. [Ratanlal and Dhirajlal, Vol 2, page

1364, Footnote 4] No material in this regard has been brought on record.

In Para 14 of the Learned Sessions Judge’s judgment, it is explicitly

stated that the contention of the accused (that the deceased had an

altercation with the accused’s labourers) was baseless. The High Court says

that the accused have not produced any evidence in support of their

contention that there was an altercation between the two groups.

Further, the contention of the prosecution (that when the deceased

merely asked the accused to leave free some passageway, and the accused

exhorted that the deceased must be taught a lesson and proceeded to hit him

on the head with the reverse-side of the kassi) has been accepted by the

courts below. There was, thus, no fight far less any sudden fight.

Provocation per se is not fight. Asking somebody to do something again

29

may not be a provocation. Expressing a desire that some passage may be

left may not be considered to be a demand.

Hence, in this case, there is nothing on facts to show that a “sudden

fight” and “heat of passion”, as envisaged under Exception 4 to S.300, had

developed.

In Tholan v. State of Tamil Nadu [(1984) 2 SCC 133], the accused,

who dealt a single knife blow on the chest found to be sufficient to cause

death, was convicted under Section 304 Part II I.P.C., the Court disagreeing

with the contention on behalf of the State that Clause III of Section 300

I.P.C would be attracted in such a case. In arriving at such a conclusion, this

Court took into consideration various surrounding circumstances, including

the fact that the accused dealt only one blow.

The case cited by the accused in Jai Prakash v. State (Delhi

Administration), [(1991) 2 SCC 32], where there was an altercation and

exchange of hot words between the accused and the deceased. Then, the

appellant took out a Kirpan (Churra) from his waist and stabbed the

deceased in the chest. The accused contended that since there was an

altercation and during the same, he suddenly whipped out a kirpan and

inflicted only one injury, it was reasonable to infer that he would not have

30

intended to cause that particular injury, and consequently, Clause Thirdly of

Section 300 is not attracted.

This contention was overruled by the Court.

In Bhagwan Bahadure v. State of Maharashtra, [2007 (11) SCALE

519], this Court opined :

“It cannot be said as a rule of universal application

that whenever one blow is given Section 302 IPC

is ruled out. It would depend upon the facts of

each case. The weapon used, size of the weapon,

place where the assault took place, background

facts leading to the assault, part of the body where

the blow was given are some of the factors to be

considered.”

Hence, the mere fact that single blow was administered doesn’t

preclude the existence of intention.

23.Reliance has been placed by learned counsel for the State, to a

decision of this Court in State of Punjab v. Tejinder Singh & Anr. [AIR

1995 SC 2466]. There two persons inflicted Gandasa blows on the

deceased. The altercation had already taken place four days prior to the

incident over the boundary line of the plots of the parties. The accused

persons came heavily armed shouting that the deceased should not be spared

at a point of time when his wife had brought breakfast for him and he had

31

gone to hand pump to bring water in a pitcher. It was even in the

aforementioned situation, this Court held :

“In view of our above findings we have now to

ascertain whether for their such acts A-1 and A-2

are liable to be convicted under Section 302 read

with Section 34, IPC. It appears from the

evidence of PW-4 and PW-5 that the deceased was

assaulted both with the sharp edge and blunt edge

of the gandasas and the nature of injuries also so

indicates. If really the appellants had intended to

commit murder, they would not have certainly

used the blunt edge when the task could have been

expedited and assured with the sharp edge. Then

again we find that except one injury on the head,

all other injuries were on non-vital parts of the

body. Post-mortem report further shows that even

the injury on the head was only muscle deep.

Taking these facts into consideration we are of the

opinion that the offence committed by the

appellant is one under Section 304 (Part I), IPC

and not under Section 302, IPC.”

24.It is, therefore, a case where Virsa Singh would be applicable. The

injury inflicted was a serious one, it by itself may not be decisive but is one

of the relevant factors in regard to the application of fourthly of section 300.

Application of the said provisions must be made keeping in mind the fact

situation obtaining and the legal principles noticed hereinbefore.

25.For the reasons aforementioned, we are of the opinion that the

appellant are guilty of commission of the offence under Section 304 Part-I

32

and not Section 304 Part-II thereof. The learned Sessions Judge has

imposed a sentence of eight years on the appellant and five years Rigorous

Imprisonment on appellant No.2. We, however, reduce the same, keeping in

view the peculiar facts and circumstances of this case, to five years and

three years respectively.

26.Appeal is allowed to the above extent.

……………..…………J.

[S.B. Sinha]

.………………….……J.

[V.S. Sirpurkar]

New Delhi

April 29, 2008

33