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PETITIONER:

KIKAR SINGH

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT12/05/1993

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

ANAND, A.S. (J)

CITATION:

1993 AIR 2426 1993 SCR (3) 696

1993 SCC (4) 238 JT 1993 (3) 508

1993 SCALE (2)917

ACT:

Indian Penal Code, 1860: S. 300 cl. 'thirdly,' Exception 4-

Ingredients: Accused-Dangerously armed-Caused fatal blows on

unharmed man, during an altercation-Injury sufficient to

cause death in-ordinary course of nature-Held, accused took

undue advantage and acted cruelly-Exception 4 not

applicable-Offence is one of murder-Conviction and sentence

tinder s. 302 awarded by trial court maintained.

HEADNOTE:

The accused-appellant was prosecuted for the offence of

murder.

The prosecution case was that during an altercation between

the accused and his neighbour the former inflicted a blow

with a Kassi (spade) on the head of the latter who fell

down; and thereafter the accused inflicted two more injuries

on the victim; out of the three injuries the third one

afflicted on the neck of the deceased was, according to the

postmortem report, sufficient to cause death in the ordinary

course of nature.

The trial court convicted the accused for the offence of

murder and sentenced him to imprisonment for life under s.

302 I.P.C. The High Court confirmed the conviction and the

sentence.

In appeal to this Court, it was contended on behalf of the

accused that the case fell under Exception 4 to s. 300 IPC

inasmuch as the accused committed the offence on the spur of

moment and inflicted the injuries during the quarrel in the

heat of passion without any premeditation and he had no

intention to cause particular injuries.

Dismissing the appeal, this Court,

HELD:1. The offence committed by the accused is one of

murder and the trial court rightly convicted and sentenced

him to imprisonment for life under s. 302 IPC. (703-D)

697

2. Culpable homicide by intentionally causing bodily injury

which is found to be sufficient in the ordinary course of

nature to cause death attracts clause 'thirdly' of s. 300

I.P.C. It would be murder unless it is brought in any one of

the exceptions. (700-E)

3.1 For application of Exception 4 to s. 300 I.P.C. all the

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conditions enumerated therein must he satisfied: the act

must. be committed without premeditation in a sudden fight

in the heat of passion, upon a sudden quarrel, without the

offender's having taken undue advantage, and the accused had

not acted in a cruel or unusual manner. (701 A, 700-H)

3.2 The accused used deadly weapon against the unarmed man

and struck him a blow on the head. He had taken undue

advantage He did not stop with the first blow, he inflicted

two more blows on the fallen man and the third one proved to

be fatal. He acted crudely with no justification. By his

conduct the appellant denied himself of the benefit of

Exception 4 to s. 300 I.P.C. (702C)

Panduranga Narayan Jawalekar v. State of Maharashtra :

[1979] 1 SCC 132, relied on.

4.1 It is not necessary that death must be inevitable or in

all circumstances the injury inflicted must cause death. If

the probability of death is very great the requirement of

clause third of s. 300 I.P.C. is satisfied. If there is

probability in a lesser degree of death ensuing from the act

committed the finding should be of culpable homicide not

amounting to murder. The emphasis is on sufficiency of

injury to cause death. The Judge must always try to find

whether the bodily injury inflicted was that which the

accused intended to inflict. The intention must he gathered

from a careful examination of all the fact-. and

circumstances in a given case. The citus at which the

injury was inflicted, nature of the injury, weapon used,

force with which it was used are all relevant facts. (703-B-

C)

4.2 The accused inflicted fatal blow, i.e., third injury

severing the neck after the deceased had fallen on the

ground due to impact of the first injury on parietal region.

The third injury is proved to be sufficient in the ordinary

course of nature to cause death. Even otherwise death is

inevitable. When the appellant inflicted two injuries on a

fallen man, he necessarily intended to inflict those two

injuries, though the first injury may be assumed to have

been inflicted during the course of altercation. (702-E-F)

698

Virsa Singh v. State of Punjab: AIR 1958 SC, 465 and Rajwant

Singh v. State of Kerala: AIR 1966 SC 1844, relied on.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 437 of

1993.

From the Judgment and Order dated 12.9.1990 of the Rajasthan

High Court in D.B. Criminal Appeal No. 185 of 1984.

C.V., Rappai, Amicus curiae for the Appellant.

Aruneshwar Gupta for the Respondent.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Special leave granted.

The appellant was convicted under s. 302 I.P.C. and

sentenced to undergo imprisonment for life for causing the

death of Jeet Singh on May 22, 1983 at about 11,00 a.m. in

the field of the deceased. The Rajasthan High Court

confirmed the conviction in Criminal Appeal No. 105 of 1984.

The case of the prosecution in nutshell was that the

deceased and the appellant are neighbouring owners of lands.

There was an altercation between them due to the appellant

throwing soil into the lands of the deceased from 'Dali'

(strip of land dividing the two fields of the deceased and

the appellant). Thereon the deceased went to the appellant

to persuade him not to throw the soil into their field and

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to have the matter settled amicably through negotiations and

if need be by measuring the lands, yet the appellant was

annoyed with the conduct of the deceased and his sons PW- 1

and PW-2 and son-in-law PW-3. At the instigation of his son

by name Pappu (who was a juvenile offender and was dealt

with separately), the appellant inflicted with Kassi (spade,

sharp edged cutting instrument) on the head of the deceased

and with its impact the deceased fell down. Thereafter the

appellant inflected two more injuries. When PW- 1 to 3

raised alarm, the accused ran away. PWs- 1 to 3 went near

Jeet Singh and found him dead with bleeding injuries on

head, neck and back.PW-1 went and lodge at the police

station the report Ex. P-1 narrating the entire prosecution

case. At the trial PWs- 1 to 3 were examined as direct

witnesses whose evidence was believed by both the courts

below as natural witnesses and the appellant was convicted

for the offence of murder. We found no infirmity in the

699

assessment of the evidence, though the counsel for the

appellant attempted to argue the case in that behalf.

However, notice was issued to the State oil the nature of

the offence and the State has appeared.

We have heard the counsel on both sides. During post-mortem

the doctor found the following thee injuries on the dead

body

1. Incised wound 11 cm x 2-1/2 cm x 5 cm on

the right pariete occipital area. Bone

fractured ura matter was seen from the wound.

2. Incised wound 15 cm x 6 cm x 5 cmon the

right scapular area bone fractured.

3. Incised wound 13 cm x 10 cm x 12 cm on the

right side of neck. All vessels of the right

side neck were cut cervical vertebrae 4 and 5

along with the spinal cord was cut through and

Larynx and right side of mandible cut.

The witnesses have stated that when the appellant caused the

first injury on the head, the deceased fell down and

thereafter the appellant inflicted the other two injuries

while the deceased was lying on the ground. The incised

injury on the parieto occipital region was the first injury.

The doctor found that by the third injury on the right side

of the neck, the vessels on the right side of the neck, were

completely cut, cervical vertebra along with spinal cord

were cut through larynx and also right side of mandible.

According to him, the third injury was sufficient to cause

death in the ordinary course of nature.

The contention of the learned counsel is that the appellant

committed the offence on the spur of moment when quarrel

ensued between the appellant and the deceased, when the

appellant was prevented to spread the soil in his field. So

in heat of passion and on the spur of moment without

premeditation the appellant inflicted injuries on the

deceased. He had no intention to cause-particular injuries,

thou oh later on proved to be fatal. Since he had no

intention to cause such injury as is likely to cause the

death and there was no premeditation, nor intention to kill,

the case would fall under Exception (4) to s. 300 I.P.C.

Even otherwise no offence of murder has been made out.

Therefore, it is only culpable homicide not amounting to

murder punishable under s. 3(A Part 11 I.P.C. Having given

our anxious consideration and the facts and circumstances do

indicate that there are no merits in either contentions.

Even if we assume that the appellant committed

700

the offence during the course of a verbal quarrel between

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the appellant and the deceased one cannot escape from the

conclusion that the offence is one of murder.

Section 299 I.P.C. defines that whoever causes death by

doing an act with the intention of causing death, or with

the intention of causing such bodily injury as is likely to

cause death, or with the knowledge that he is likely by such

act to cause death, commits the offence of culpable

homicide. Under s.,300 except in the cases hereinafter

excepted, culpable homicide is murder........ thirdly if it

is done with the intention of causing bodily injury to any

person and the bodily injury intended to be inflicted is

sufficient in the ordinary course of nature to cause death.

Exception 4 thereof provides that 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. Under s. 302 whoever commits

murder shall be punished with death, or imprisonment for

life, and shall also be liable to fine. 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, or

with fine, or with both. Under second part of s. 304 I.P.C.

if the act is done with the knowledge that it is likely to

cause death, but without any intention to cause death, or to

cause such bodily injury as is likely to cause death.

It is, therefore, clear that culpable homicide is murder

when the accused causes death by doing an act with the

intention of causing death, or causing such bodily injury as

is likely to cause death, or with the knowledge that he is

likely by such act to cause death. If the accused

intentionally causes bodily injury which is found to be

sufficient in the ordinary course of nature to cause death

if would attract clause thirdly of s. 300 I.P.C. If the

accused knows that the act he causes is 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 it would attract clause

fourthly. It would be murder unless it is brought in any

one of the exceptions. In a given case even if the case

does not fall in any of the exceptions, still if the

ingredients of clauses 1 to 4 of Section 3(X) are not

satisfied, then it would be culpable homiest not amounting

to murder punishable under s. 304 either clause 1 or clause

2. It is, therefore, the duty of the prosecution to prove

the offence of murder.

The counsel attempted to bring the case within exception 4.

For its application all the conditions enumerated therein

must be satisfied. The act must be committed without

premeditation in a sudden fight in the heat of passion; (2)

upon

701

a sudden quarrel; (3) without the offender shaving taken

undue advantage; (4) and the accused had not acted in a

cruel or unusual manner. Therefore, there must be a mutual

combat or exchanging blows on each other. And however

slight the first blow, or provocation, every fresh blow

becomes a fresh provocation. The blood is already heated or

warms up at every subsequent stroke. The voice of reason is

heard on neither side in the heat of passion. Therefore, it

is difficult to apportion between them respective degrees of

blame with reference to the state of things at the

commencement of the fray but it must occur as a consequence

of a sudden fight i.e. mutual combat and not one side track.

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It matters not what the cause of the quarrel is, whether

real or imaginary, or who draws or strikes first. The

strike of the blow must be without any intention to kill or

seriously injure the other. If two men start fighting and

one of them is unarmed while the other uses a deadly weapon,

the one who uses such weapon must be held to have taken an

undue advantage denying him the entitlement to exception 4.

True the number of wound is not the criterion, but the

position of the accused and the deceased with regard to

their arms used, the manner of combat must be kept in mind

when applying exception 4. When the deceased was not armed

but the accused was and caused injuries to the deceased with

fatal results, the exception 4 engrafted to Section 300 is

excepted and the offences committed would be one of murder.

The occasion for sudden quarrel must not only be sudden but

the party assaulted must be on an equal footing in point of

defence, at least at the onset. This is specially so where

the attack is made with dangerous weapons. Where the

deceased was unarmed and did not cause any injury to the

accused even following a sudden quarrel if the accused has

inflicted fatel blows on the deceased, exception 4 is not

attracted and commission must be one of murder punishable

under s. 302. Equally for attracting exception 4 it is

necessary that blows should be exchanged even if they do not

all find their target. Even if the fight is unpremeditated

and sudden, yet if the instrument of manner of retaliation

be greatly disproportionate to the offence given, and cruel

and dangerous in its nature, the accused cannot be protected

under exception 4. In Pandurang Narayan Jawalekar v. State

of maharashtra [1979] 1 SCC 132, the facts proved were that

the appellant gave a blow on the head of the deceased old

man who was advising him not to quarrel. The injury caused

to the brain from one end to the other resulted in fracture

as could appear from the evidence of the doctor. It would

show that the accused must have struck the blow on the head

of the deceased with an iron bar with very great force.

Accordingly it was held that exception 4 does not apply

though there was sudden quarrel and that the fight was not

premeditated to cause death. It must be shown that the

injury caused is not cruel one. The conviction for offence

under s. 302 by the High Court reversing the acquittal by

trial court was upheld.

702

If the weapon used or the manner of attack by the assailant

is out of all proportion to the offence given that

circumstance must be taken into consideration to decide

whether undue advantage has been taken. Where a person,

during the course of sudden fight, without premeditation and

probably in the heat of passion, took undue advantage and

acted in a cruel manner in using a deadly weapon there was

no ground to hold that his act did not amount to murder.

Therefore, if the appellant used deadly weapons against

the unarmed man and struck him a blow on the head it must be

held that he inflicted the blows with the knowledge that

they would likely to cause death and he had taken undue

advantage. He did not stop with the first blow, he inflicted

two more blows on the fallen man and the third one proved to

be fatal. He acted cruelly with no justification. By his

conduct the appellant denied himself of the benefit of

exception 4 to s. 300 I.P.C.

In Virsa Singh v. State of Punjab AIR 1958 SC 465, a leading

forerunner on the point, this Court held that the

prosecution must prove that bodily injury is present. The

nature of the injury must be proved. Thirdly, it must he

proved that there was an intention to inflict that

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

accidental or an intentional,or that some other kind of

injury was intended. Once these three elements are proved to

be present, the court must further proceed with the enquiry

and find that the prosecution has proved that the injury

described is sufficient to cause death in the ordinary

course of nature. This part of the enquiry is purely

objective and inferential and has nothing to do with the

intention of the offender. Once these four elements are

established by the prosecution the offence of murder falls

under clause thirdly of Section 300. It matters not that

there was no intention to cause death or that there was no

intention even to cause death in the ordinary course of

nature. Once it is proved that the intention to cause the

bodily injury actually found to be present, the rest of the

enquiry is purely objective to be deduced by inference. But

where no evidence or explanation is given about why the

accused thrust a spear into the abdomen of the decease with

such force that it penetrated the bowels and three coils of

the intestines came out of the wound and that digested food

oozed out from cuts in three places, it would be perverse to

conclude that he did not intend to inflict the injury that

he did. The question whether there is intention 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 accused intended to inflict the

injury in question. It was held in that case that the

offence was one of murder falling under clause thirdly of

Section 302. In Rajwant Singh v. State of kerala AIR [1996]

SC 1874, the bodily injury consisted of tying up the hands

and the feet of the victim, closing the mouth with adhesive

plaster and plugging the nostrils with cotton soaked in

chloroform. All these acts were

703

deliberate acts which had been preplanned and, therefore,

this Court held that the acts satisfied the objective tests

of clause 3 of s. 300 and were held to be sufficient in the

ordinary course to cause death. Accordingly it was one

punishable under s. 302.

It is not necessary that death must be inevitable or in all

circumstances the injury inflicted must cause death. If the

probability of death is very great the requirement of clause

third is satisfied. If there is prob ability in a less

degree of death ensuing from the act committed the finding

should be of culpable homicide not amounting to murder. The

emphasis is sufficiency of injury to cause death. A judge

must always try to find whether the bodily injury inflicted

was that which the accused intended to inflict. The

intention must be gathered from a careful examination of all

the facts and circumstances in a given case. The citus at

which the injury was inflicted, nature of the injury, weapon

used, force with which it was used are all relevant facts.

We find from the facts that the appellant inflicted fatal

blow, i.e. 3rd injury severing the neck after the deceased

had fallen on the ground due to impact of the first injury

on practical region. The third injury is proved to he

sufficient in the ordinary course of nature to cause death.

Even otherwise death is inevitable. When the appellant

inflicted two injuries on a fallen man, it must be held that

he intended to inflict those two injuries, though the first

injury may be assumed to have been inflicted during the

course of altercation. Thus we hold that the offence is one

of murder and the appellant was rightly convicted and

sentenced to imprisonment for life under s. 302 I.P.C.

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The appeal is, therefore, dismissed.

R. P. Appeal dismissed,

704