1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 2025 OF 2022

PRASAD PRADHAN & ANR. …APPELLANT(S)

VERSUS

THE STATE OF CHHATTISGARH …RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. This appeal, by special leave, arises from the judgment and order of the

Chhattisgarh High Court

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, affirming the conviction recorded, and the sentence

imposed, upon the present appellants.

2. The State of Chhattisgarh (hereafter “the state”) prosecuted the appellants

in relation to an incident, leading to the death of one Vrindawan. The

prosecution’s allegation was that the appellant/accused and Vrindawan, the

deceased, were cousins. On the afternoon of 28.02.2012, when the deceased was

getting his land levelled through a JCB machine, the appellants reached the place

and attacked him. Vrindawan sustained several injuries including head injuries.

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Dated 20.02.2019 in Cr. A. No. 178/2013

Digitally signed by

NEETA SAPRA

Date: 2023.01.24

16:33:30 IST

Reason:

Signature Not Verified 2023 INSC 79

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He was taken to the hospital and was examined by Dr. Bhageshwar Patel (PW11).

As serious head injuries were involved Vrindawan was operated upon by Dr. S.N.

Madhariya (PW15). However, Vrindawan could not survive and died on

22.03.2012. Dr. S.K. Bagh (PW14) conducted the post-mortem and in his report

(Ex. P-28), stated that death was caused by injuries sustained by the deceased on

the head.

3. The police registered a case under Section 302 read with 34 Indian Penal

Code (hereafter “IPC”) against all accused, based on a first information report

(hereafter ‘FIR’) lodged by Aarti Pradhan (PW1) the deceased Vrindawan’s

daughter. The FIR (Ex. P-1) alleged that the appellants reached the spot, abused

Vrindawan and then assaulted him. The allegation against A-1 Prasad Pradhan

was that he was armed with an axe and attacked the deceased on the head. Against

A-2 Lingraj Pradhan, the allegation was that he was armed with an axe and had

assaulted the deceased on the legs. Regarding the third accused person - Soudagar

Pradhan, who is grandson of A-1 and son of A-2, the allegation was that he went

to the spot and caught hold of the deceased. Soudagar Pradhan, however, is not

an appellant before this court.

4. After the final report was filed, the trial court charged all three accused

persons of sharing common intention and then committing the murder of

Vrindawan – they were charged for offences under Section 294, 323 read with

34, 302 read with 34, IPC. The appellants, having abjured guilt, were put to trial.

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The prosecution examined as many as 15 witnesses. Aarti Pradhan (PW1),

Narrotam (PW2), Safed Pradhan (PW3), Rukni (PW4), Ayodhya Bai (PW5) and

Navin Sahu (PW6) are relatives of the deceased. The appellants examined two

defence witnesses. The court held all the appellants guilty of commission of the

offence alleged against them and sentenced them: life imprisonment, for the

offence of murder, and six months rigorous imprisonment for the offence under

Section 323 IPC. The appellants’ appeal before the High Court was partly allowed

by the impugned judgment. The High Court acquitted Soudagar Pradhan on both

counts, but affirmed the conviction and sentence of the present appellants (A1

and A2). They are, resultantly, before this court.

Contentions of the appellants

5. The appellants argue that the prosecution evidence ought to be discarded.

The credibility of the three eyewitnesses is impeached, as they were related to the

deceased and further, according to the appellants, their statements otherwise

suffer from material contradictions and are implausible. Learned counsel

submitted that taken as a whole, the evidence cannot lead one to conclude that the

finding of common intention is made out. Learned counsel argued that the dispute

arose in a flash, suddenly at the spot when the deceased -Vrindawan started

getting the disputed land levelled, due to which the appellants (who lived in the

same locality in adjacent houses) went out of their houses, and allegedly assaulted

the deceased. Therefore, in these circumstances, it is argued, the appellants are

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liable only to the extent of their individual overt acts. It was argued alternatively,

that the incident happened all of a sudden and without premeditation. The

appellants had no intention to cause death but deter Vrindawan from doing any

activity on the disputed land. Therefore, the conviction of the appellants may not

travel beyond Section 304 Part-II IPC.

6. Learned counsel for the appellants also argues that the death of Vrindawan

took place after about 20 days of the incident on account of complication in the

surgery and it cannot be said that the cause of death was injury as the prosecution

could not prove that injury caused to the deceased, in ordinary course of nature,

was sufficient to cause death. Learned counsel highlighted that the injury caused

by the appellants, particularly the head injury, was stitched in and had healed.

Learned counsel emphasized that Vrindawan died as a result of cardio-respiratory

failure, as stated by PW14. Such being the case, the finding of the courts below

that the appellants were guilty of the offence of Section 302 IPC was clearly in

error of law. It was argued that arguendo, if the prosecution could be said to have

proved the attack by the appellants on the deceased, the cause of death neither

being immediate nor a direct result of it, there is no question of the ingredients of

the offence of murder under Section 302 IPC having been proved beyond

reasonable doubt.

7. It was submitted that taken together, the appellants could, at the highest, be

convicted of the offence of culpable homicide not amounting to murder under

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Section 304 Part I IPC since it was neither their intention to kill the deceased nor

was the injury sufficient to cause death in the ordinary course of nature – which

was borne out by the circumstance of him surviving the attack for 20 days. It was

submitted that the appellants should be granted the benefit of a modified

conviction to one, under that provision. Justifying the submission, the learned

counsel stated that there was a prior history of disputes between the appellants

and the deceased. The deceased’s conduct in calling for a heavy JCB machine, to

get the tank on the property repaired, was a sudden provocation, given the history

of bad blood, which the prosecution witness PW1 in fact, deposed to. Therefore,

the exception to Section 300 IPC was attracted to the facts of this case.

8. It was submitted that the High Court erred in failing to give the benefit of

doubt to the appellants, in the manner that it did to the third accused - Soudagar

Pradhan. It was contended that the evidence and materials in respect of his alleged

involvement were the same as in the case of the appellants; therefore, they too,

were entitled to be treated in a like manner and acquitted.

Contentions of the state/respondent

9. It was argued, on behalf of the state, that the concurrent findings of the

courts below - as well as the sentence imposed, do not call for interference, as

they do not contain any glaring infirmity or error. Learned counsel relied on the

depositions by the two doctors and also highlighted that the victim never

recovered from his injuries; he was not even in a position to record a statement.

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It was also argued that for the entire duration that the victim was alive after the

incident, he was in the hospital, where he never recovered and died there itself.

10. It was argued that the credibility of PW1 as an eyewitness cannot be

questioned; she was, in fact, also a victim of the attack and had received injuries

on her leg, due to an axe blow given by one of the accused/appellants. Likewise,

learned counsel stated that PW2, another brother of the deceased, had

corroborated the evidence of PW1 on all material aspects. He had seen both

accused, armed in the manner deposed to by PW1, attacking the deceased.

Further, PW3, the wife of the deceased also corroborated the testimonies of the

other two witnesses. Though she did not witness the actual assault, she had seen

the two appellants armed with axes. PW4, sister-in-law of PW3, too, deposed that

Vrindawan was attacked by the accused whilst he was engaged in cleaning near

the septic tank and that the two appellants attacked him with axes.

11. Learned counsel argued that the medical examination of the deceased was

conducted by Dr. Bhageshwar Patel (PW11), who prepared the medical report

(Ex. P-21). The Surgeon, Dr. S.N. Madhariya (PW15) deposed that the back of

the deceased’s skull was broken and was operated upon. Dr. S.K. Bagh (PW14),

who conducted post-mortem, clearly stated regarding cause of the death, in the

present case, which pointed out to cardio- respiratory failure, due to multiple

injuries. In the cross examination, the appellants could not elicit from the witness

that the injury caused to the deceased in the ordinary course of nature was

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insufficient to cause death or that the death occurred due to surgical complication

and not because of injury.

12. Learned counsel for the state relied on this court’s decisions in Sudershan

Kumar v. State of Delhi

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, State of Rajasthan v. Arjun Singh & Ors.

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, State of

Rajasthan v. Kanhaiya Lal

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, and State of Rajasthan v. Leela Ram

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to urge that the

facts of this case, do not support the appellants’ contention that the offence of

culpable homicide under Section 304 Part II is made out. It was submitted that

the pre-existing dispute, in this case, could not be said to constitute a “grave and

sudden” provocation. Further, the circumstance that the victim survived for some

length of time, ipso facto is an irrelevant factor since the prosecution established

that the cause of the death was directly linked to the injuries sustained, which in

turn were inflicted by the appellants.

13. Learned counsel submitted that Exception 4 to Section 300 IPC is clearly

not attracted in the facts of this case because the appellants had, in fact, behaved

in an unusual and cruel manner and also took undue advantage of the situation

because they were fully armed, and inflicted serious injuries upon the deceased,

who was neither armed nor provoked them.

2

1975 (3) SCC 831

3

2011 (9) SCC 115

4

2019 (5) SCC 639

5

2019 (13) SCC 131

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Analysis and conclusions

14. In this case, the nature of the attack by the appellants and the quality of

eyewitness testimony of prosecution witnesses, especially PW1 to PW5, cannot

be doubted. This court is of the opinion that the circumstance that most of the

witnesses were related to the deceased does not per se exclude their testimony.

The test of credibility or reliability when applied, is fully satisfied in respect of

the strength of their testimonies. Although PW1 is the deceased’s daughter, that

is insufficient to doubt the veracity of what she recounted during the trial, which

is that she saw the appellants attack her father with axes. She tried to intervene

and save the deceased, upon which she was also given axe blows on her leg. There

is no explanation on the part of the appellants as to why the witness should depose

falsely; nor is there any explanation as to how she could have received her

injuries. Most importantly, her testimony is corroborated by PW2, PW3 and PW4.

Therefore, this court is of the opinion that all the material aspects of the factual

accusations against the appellants and how they attacked the deceased in an

unprovoked manner, cannot be doubted.

15. The question, then, is whether the appellants are guilty of the offence of

murder, punishable under Section 302, or whether they are criminally liable under

the less severe Section 304, IPC. As noted in several judgments, this question has

engaged the courts for over a century. The distinction between these two is

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discernible in the manner they are defined, under Section 299

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IPC and Section

300

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IPC. In a decision, which is now considered to be the locus classicus on the

issue, Virsa Singh v. State of Punjab,

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this court stated as follows:

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Section 299 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.

Illustrations

(a) A lays slicks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to

be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable

homicide.

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death,

induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable

homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here,

although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death

by doing an act that he knew was likely to cause death.

Explanation I.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity,

and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have

caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide

to cause the death of a living child, if any part of that child has been brought form, though the child may not have breathed or

been completely born.

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300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is

done with the intention of causing death, or--

Secondly.--If it is done 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, or--

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, or--

Fourthly.--If the person committing the act knows that it 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 as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention

of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been

sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that

Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound

state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause

death, or such bodily injury as in the ordinary course of nature would cause death.

(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.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although

he may not have had a premeditated design to kill any particular individual.

Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the

power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes

the death of any other person by mistake or accident.

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The above exception is subject to the following provisos:--

First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to

any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful

exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a

question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z"s child. This is murder, in as

much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in

doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to, A, A, on this provocation, fires a pistol at Y, neither intending nor knowing

himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable

homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in

as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has

perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A

is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given

by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to

cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only

culpable homicide, but A is guilty of murder.

Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of

person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising

such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose

of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault.

A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not

committed murder, but only culpable homicide.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the

advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good

faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards

the person whose death is caused.

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 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.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years,

suffers death or takes the risk of death with his own consent.”

Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z"s youth,

he was incapable of giving consent to his own death; A has therefore abetted murder.

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"The prosecution must prove the following facts before it can bring a

case under S. 300 ‘3rdly’. First, it must establish, quite objectively, that

a bodily injury is present; secondly the nature of the injury must be

proved. These are purely objective investigations. 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."

16. In State Of Andhra Pradesh v. Rayavarapu Punnayya & Anr.

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another oft-

cited judgment, this court observed as follows:

“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, was intentionally

given.

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[1958] S.C.R. 1495

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1977 SCR (1) 601

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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 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 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 v. State of Kerala [AIR 1966 SC 1874: 1966 Supp

SCR 230: 1966 Cri LJ 1509.] is an apt illustration of this point.”

The court then quoted the decision in Virsa Singh (supra), and held that:

“Thus according to the rule laid down in Virsa Singh's case (supra)

even if the intention of 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 S. 300 clearly brings out this point.

Clause (c) of S. 299 and clause (4) of S. 300 both require knowledge of

the probability of the 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 cl. (4) of S.

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.”

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A later decision, Pulicherla Nagaraju @ Nagaraja Reddy v. State of

Andhra Pradesh

10

considered these aspects and held that:

"29. Therefore, the Court should proceed to decide the pivotal question

of intention, with care and caution, as that will decide whether the case

falls under Section 302 or 304 Part I or 304 Part II. Many petty or

insignificant 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 of murder 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

of culpable 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 of sudden quarrel or sudden fight

or free for all fight;

(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 if so, 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 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.”

10

(2006) 11 SCC 444

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17. The question in cases, like the present one is, therefore, whether the injury

caused due to the attack is one which falls within the description of Section 300

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”) or if it falls within the mischief of Section 300 fourthly

(“If the person committing the act knows that it 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 as aforesaid”).

18. The requirement of Section 300 thirdly is fulfilled if the prosecution proves

that the accused inflicted an injury which would been sufficient to have resulted

in death of the victim. The determinative fact would be the intention to cause such

injury and what was the degree of probability (gravest, medium, or the lowest

degree) of death which determines whether the crime is culpable homicide or

murder.

19. The case law on the issue of the nature of injury being so dangerous as to

result in death (Section 300 fourthly), have emphasised on the accused’s

disregard to the consequences of the injury, and an element of callousness to the

result, which denotes or signifies the intention. In State of Madhya Pradesh v.

Ram Prasad,

11

this court held that:

11

1968 (2) SCR 522

15

“Although Clause fourthly is usually invoked in those cases where there

is no intention to cause the death of any particular person (as the

illustration shows) the Clause may on its terms be used in those cases

where there is such callousness towards the result and the risk taken is

such that it may be stated that the person knows that the act is likely to

cause death or such bodily injury as is likely to cause death. In the

present case, Ram Prasad poured kerosene upon the clothes of Mst.

Rajji and set fire to those clothes. It is obvious that such fire spreads

rapidly and burns extensively. No special knowledge is needed to know

that one may cause death by burning if he sets fire to the clothes of a

person. Therefore, it is obvious that Ram Prasad must have known that

he was running the risk of causing the death of Rajji or such bodily

injury as was likely to cause her death. As he had no excuse for

incurring that risk, the offence must be taken to fall within 4thly of

Section 300, Indian Penal Code. In other words, his offence was

culpable homicide amounting to murder even if he did not intend

causing the death of Mst. Rajji. He committed an act so imminently

dangerous that it was in all probability likely to cause death or to result

in an injury that was likely to cause death. We are accordingly of the

opinion that the High Court and the Sessions Judge were both wrong

in holding that the offence did not fall within murder.”

Similarly, three Judges of this Court, in Santosh S/o. Shankar Pawar v.

State of Maharashtra

12

observed,

“13. Even assuming that the Accused had no intention to cause the

death of the deceased, the act of the Accused falls under Clause

Fourthly of Section 300 Indian Penal Code that is the act of causing

injury so imminently dangerous where it will in all probability cause

death. Any person of average intelligence would have the knowledge

that pouring of kerosene and setting her on fire by throwing a lighted

matchstick is so imminently dangerous that in all probability such an

act would cause injuries causing death.”

20. Turning back to the facts of this case, the concurrent findings which this

court sees no difficulty in accepting are that firstly, the appellants were

aggressors; secondly, they attacked the deceased, with axes; thirdly, the deceased

was unarmed; fourthly, during the attack, the victim’s daughter, PW1 reached the

spot, and tried to dissuade the appellants; fifthly, the appellants continued their

12

(2015) 7 SCC 641

16

assault on the victim and also attacked the witness with an axe; sixthly, since three

injuries sustained by the appellant, were on the head, he fell down; seventhly, the

victim was rushed to the hospital, and had to be shifted to another speciality

hospital, for surgery. Eighthly, the deceased was not able to record his statement;

he was never discharged and died in the hospital, after 20 days. Lastly, the doctor

who conducted the post-mortem (PW-14), stated that the injuries were caused by

a hard and blunt object, and death of the deceased was due to cardio respiratory

failure “as a result of multiple injuries on his body and their complications”.

Apart from the head, there were several other injuries, in the form of abrasions,

contusions on the elbow, the lower back, fracture of rib cage, etc. At the time of

death, Vrindawan was aged 55 years.

21. There is evidence in the form of statements of both PW1 (Vrindawan’s

daughter) and PW2 (Vrindawan’s brother, Narottam) that the deceased and the

appellants had pre-existing disputes. However, both these witnesses corroborated

each other and stated that the quarrel or dispute pertained to land had existed for

a long time. PW2, in fact, stated that partition of properties had taken place

amongst the brothers, despite which these quarrels had persisted.

22. The question then is - was there a “sudden quarrel” between the deceased

and the appellants so that the case would not be murder, but culpable homicide,

in terms of Exception 4 (“if it is committed without premeditation in a sudden

fight in the heat of passion upon a sudden quarrel and without the offender having

17

taken undue advantage or acted in a cruel or unusual manner”). In the opinion

of this court, there was no “sudden quarrel”. The testimonies of the two important

eyewitnesses, PW1 and PW2, establish that when the deceased was levelling the

septic tank on his property, the accused/appellants started abusing him; he asked

them not to. The appellants, who were in the adjacent property, climbed the wall,

entered the deceased’s house, and attacked him with axes. These facts do not

constitute a “sudden quarrel”, given that the appellants abused the deceased, in

an unprovoked manner, and then they went to where he was, armed with axes,

and assaulted him. Arguendo, even if the facts are assumed to disclose that there

was a sudden fight, it cannot be said that the accused failed to act in a cruel

manner, or did not take undue advantage. This is because they were armed: a fact

which shows pre-meditation on their part. Moreover, they both attacked

Vrindawan on the head, which is a vital part of the body, thus taking undue

advantage of their situation.

23. Again, on the question of whether the facts of this case are covered by the

first exception to Section 300, i.e., that the accused/appellants did what they were

accused of (which is to attack and inflict grave injuries that led to the death of

Vrindawan), because of their loss of self-control, on account of a grave and

sudden provocation – the answer must be the same, which is that the provision

(Exception 1 to Section 300) cannot be attracted. Apart from a long-standing pre-

existing dispute, what caused “sudden” provocation to the appellants, has not

18

been shown by them. Neither did they lead any evidence, to fall within Exception

1, nor did the evidence on record substantiate such a contention. Speaking of what

is grave and sudden provocation, this court in K.M. Nanavati v. State of

Maharashtra

13

explained the standard of reasonableness for applying the “grave

and sudden” provocation, in the following manner:

“84. Is there any standard of a reasonable man for the application of

the doctrine of "grave and sudden" provocation? No abstract standard

of reasonableness can be laid down. What a reasonable man will do in

certain circumstances depends upon the customs, manners, way of life,

traditional values etc.; in short, the cultural, social and emotional

background of the society to which an Accused belongs. In our vast

country there are social groups ranging from the lowest to the highest

state of civilization. It is neither possible nor desirable to lay down any

standard with precision: it is for the court to decide in each case, having

regard to the relevant circumstances. It is not necessary in this case to

ascertain whether a reasonable man placed in the position of the

Accused would have lost his self-control momentarily or even

temporarily when his wife confessed to him of her illicit intimacy with

another, for we are satisfied on the evidence that the Accused regained

his self-control and killed Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may be stated thus:

(1) The test of "grave and sudden" provocation is whether a reasonable

man, belonging to the same class of society as the Accused, placed in

the situation in which the Accused was placed would be so provoked as

to lose his self-control. (2) In India, words and gestures may also, under

certain circumstances, cause grave and sudden provocation to an

Accused so as to bring his act within the First Exception to Section 300

of the Indian Penal Code. (3) The mental background created by the

previous act of the victim may be taken into consideration in

ascertaining whether the subsequent act caused grave and sudden

provocation for committing the offence. (4) The fatal blow should be

clearly traced to the influence of passion arising from that provocation

and not after the passion had cooled down by lapse of time, or otherwise

giving room and scope for premeditation and calculation”

13

1962 SCR Supl. (1) 567

19

24. If one were to apply the above tests to the present case, what is evident is

that while there were pre-existing disputes of some vintage, between the

appellants and the deceased, there is nothing to show that they had been

aggravated. It is also, likewise, not clear whether the deceased said anything to

the appellants which triggered their ire, leading to loss of self-control as to result

in “grave and sudden provocation”. In any case, if there were something, the

appellants ought to have brought the relevant material or evidence on record, as

what facts did exist, was within their peculiar knowledge.

25. During the hearing, the appellants counsel had urged that Vrindawan died

20 days after the attack, and the lapse of such a time shows that the injuries were

not sufficient to cause death in the ordinary course of nature. On this aspect, there

are several judgments, which emphasize that such a lapse of time, would not per

se constitute a determinative factor as to diminish the offender’s liability from the

offence of murder to that of culpable homicide, not amounting to murder. In Om

Parkash v. State of Punjab,

14

the death occurred 13 days after the attack; the

accused was convicted of murder. Similarly, in Patel Hiralal Joitaram v. State of

Gujarat,

15

the death occurred a fortnight after the attack, and in Sudershan Kumar

(supra), the death occurred 12 days after the attack.

26. There can be no stereotypical assumption or formula that where death

occurs after a lapse of some time, the injuries (which might have caused the

14

1992 (3) SCR 921

15

2002 (1) SCC 22

20

death), the offence is one of culpable homicide. Every case has its unique fact

situation. However, what is important is the nature of injury, and whether it is

sufficient in the ordinary course to lead to death. The adequacy or otherwise of

medical attention is not a relevant factor in this case, because the doctor who

conducted the post-mortem clearly deposed that death was caused due to cardio

respiratory failures, as a result of the injuries inflicted upon the deceased. Thus,

the injuries and the death were closely and directly linked.

27. In view of the above discussion, this court is of the opinion that there is no

infirmity in the impugned judgment. The conviction and sentence imposed on the

appellants do not therefore, call for interference. The appeal is consequently

dismissed, without order on costs.

...............................................J.

[KRISHNA MURARI ]

..............................................J.

[S. RAVINDRA BHAT]

NEW DELHI,

JANUARY 24, 2023.