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CASE NO.:

Appeal (crl.) 1456 of 2004

PETITIONER:

Thangaiya

RESPONDENT:

State of Tamil Nadu

DATE OF JUDGMENT: 08/12/2004

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising Out of S.L.P. (Crl.) No. 5080 of 2003

ARIJIT PASAYAT, J.

Leave granted.

Appellant calls in question legality of the judgment rendered by

a Division Bench of the Madras High Court confirming his conviction for

offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short 'IPC'), and sentence of imprisonment for life as awarded by the

learned Sessions Judge, Kanyakumari.

Background facts as unfolded during trial by the prosecution are

essentially as follows:

One Selvamani Nadar (hereinafter referred to as the 'deceased')

was having industry and he employed a number of girls. The accused

used to make fun of the girls/workers outside the factory and this was

objected to by the deceased several times. On that score, there had

been enmity between the deceased and the accused.

At about 8.30 p.m. on 1.5.1990, PW-1, PW-2 and one Murugesan were

standing in front of Bensam Ground, south of Kulachal-Nagercoil Mail

Road. The accused was sitting on the eastern side of a culvert. There

was a tube light burning and hence there was enough light at that

place. At that time, the deceased, who came in a bicycle proceeding

from east to west, took a turn towards south. The accused rushed to

the deceased saying "you die, old man" and hit him with a stick (M.O.1)

on his head. The deceased sustained injuries and there was profuse

bleeding. PW-1, PW-2 and Murgesan immediately went near him and when

the accused saw them coming near ran towards west, leaving the weapon

viz., M.O.1 stick. Thereafter, PW-1, PW-2, Murugesan and the wife of

the deceased took the deceased to the Government Hospital at Kulachal.

After giving first aid to the deceased, the doctors in the said

hospital advised to take the deceased to Nagercoil for further

treatment. The aforementioned persons thereafter took the deceased to

Nagercoil and at the Government Hospital, Kottar, the deceased was

treated by Doctor Rani Fnoch (PW-6).

The doctor found several injuries. PW-1 narrated the incident to

the Head Constable (PW-10) at the police station who recorded the first

information report (Ex.P-11). Same was dispatched to the Court of

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Judicial Magistrate. Assistant Surgeon, Government Hospital (PW-7)

treated the deceased who breathed his last at about 1.25 a.m. on

2.5.1990. On receiving information about the death the case which was

originally registered under Sections 307, 323 and 341 IPC was

registered under Section 302 IPC, and necessary information was sent to

the Court of Judicial Magistrate. On postmortem 6 injuries were

noticed, out of which 3 were external and the rest were internal.

Injuries 1 and 2 as noticed were abrasions but the fatal injury i.e.

injury No.3 was stated to be 4" linear oblique sutured wound over the

right parietal scalp. The doctor opined that the injury was sufficient

in ordinary course of nature to cause death. On 4.5.1990 the accused

was arrested and after completion of investigation the charge sheet was

placed. The accused pleaded innocence. The Trial Court found that the

evidence of eye witnesses PWs. 1, 2 and 3 were cogent and credible.

The accused used to tease girls working in the factory of the deceased.

When the deceased objected to the same, there was some misunderstanding

and at the time of occurrence when the deceased was coming by bicycle,

the accused rushed towards him and attacked him; resulting the fatal

injury. When the eye witnesses rushed to help the deceased, the

accused ran away. Placing reliance on the evidence and considering the

entire material on record the trial Court found the accused guilty and

convicted as aforesaid. An appeal was preferred before the High Court

questioning the conviction and sentence. Before the High Court, it was

urged that PWs. 1 and 2 were related to the deceased, and PW-3 was a

chance witness and no credence should be put on their evidence. The

High Court did not accept the plea and finding the analysis of evidence

by the trial Court to be in order, upheld the conviction and sentence.

In support of the appeal, learned counsel for the appellant

submitted that the evidence of PW-3 who was treated as an independent

witness was that a chance witness and his evidence should not have been

relied upon. It is further submitted that even if the prosecution

version is accepted in toto no case for application of Section 302 IPC

has been made out. Only one blow with a small stick was given.

Per contra, learned counsel for the respondent-State supported

the judgment of the Courts below and submitted that the judgments are

well reasoned and no interference is called for.

Coming to the plea of the accused that PW-3 was 'chance witness'

who has not explained how he happened to be at the alleged place of

occurrence, it has to be noted that the said witness was an independent

witness. There was not even a suggestion to the witness that he had any

animosity towards the accused. In a murder trial by describing the

independent witnesses as 'chance witnesses' it cannot be implied

thereby that their evidence is suspicious and their presence at the

scene doubtful. Murders are not committed with previous notice to

witnesses; soliciting their presence. If murder is committed in a

dwelling house, the inmates of the house are natural witnesses. If

murder is committed in a street, only passersby will be witnesses.

Their evidence cannot be brushed aside or viewed with suspicion on the

ground that they are mere 'chance witnesses'. The expression 'chance

witness' is borrowed from countries where every man's home is

considered his castle and everyone must have an explanation for his

presence elsewhere or in another man's castle. It is quite unsuitable

an expression in a country where people are less formal and more

casual, at any rate in the matter explaining their presence. Therefore,

there is no substance in the plea that PW-3's evidence which is clear

and cogent is to be discarded.

This brings us to the crucial question as to which was the

appropriate provision to be applied. In the scheme of the IPC culpable

homicide is genus and 'murder' its specie. All 'murder' is 'culpable

homicide' but not vice-versa. Speaking generally, 'culpable homicide'

sans 'special characteristics of murder is culpable homicide not

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amounting to murder'. For the purpose of fixing punishment,

proportionate to the gravity of the generic offence, the IPC

practically recognizes three degrees of culpable homicide. The first

is, what may be called, 'culpable homicide of the first degree'. This

is the gravest form of culpable homicide, which is defined in Section

300 as 'murder'. The second may be termed as 'culpable homicide of the

second degree'. This is punishable under the first part of Section

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

the lowest type of culpable homicide and the punishment provided for it

is also the lowest among the punishments provided for the three grades.

Culpable homicide of this degree is punishable under the second part of

Section 304.

The academic distinction between 'murder' and 'culpable homicide

not amounting to murder' has always vexed the Courts. The confusion is

caused, if Courts losing sight of the true scope and meaning of the

terms used by the legislature in these sections, allow themselves to be

drawn into minute abstractions. The safest way of approach to the

interpretation and application of these provisions seems to be to keep

in focus the keywords used in the various clauses of Sections 299 and

300. The following comparative table will be helpful in appreciating

the points of distinction between the two offences.

Section 299 Section

300

A person commits culpable homicide Subject to certain

exceptions

if the act by which the death is culpable homicide is

murder caused is done \026 if the act by

which the

death is caused is done -

INTENTION

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

intention of

death; or causing death; or

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

intention of

such bodily injury as is likely causing such

bodily injury

to cause death; or as the offender

knows to be

likely to cause the

death of

the person to whom the

harm

is caused; or

(3) With the intention

of

causing bodily injury

to any

person and the bodily

injury

intended to be

inflicted

is sufficient in the

ordinary course of

nature

to cause death; or

KNOWLEDGE

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****

(c) with the knowledge that the act (4) with the

knowledge that

is likely to cause death. the act is so

imminently

dangerous that it must

in all

probability cause death

or

such bodily injury as is

likely to cause death,

and

without any excuse for

incurring the risk of

causing

death or such injury as

is

mentioned above.

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. 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.

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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 and Anr. v. State of Kerala, (AIR

1966 SC 1874) is an apt illustration of this point.

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

Bose, J. speaking for the Court, explained the meaning and scope of

clause (3). It was observed that the prosecution must prove the

following facts before it can bring a case under Section 300,

"thirdly". First, it must establish quite objectively, that a bodily

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

These are purely objective investigations. Thirdly, it must be proved

that there was an intention to inflict that particular injury, that is

to say, that it was not accidental or unintentional or that some other

kind of injury was intended. Once these three elements are proved to

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

proved that the injury of the type just described made up of the three

elements set out above was sufficient to cause death in the ordinary

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

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

The ingredients of clause "Thirdly" of Section 300, IPC were

brought out by the illustrious Judge in his terse language as follows:

"To put it shortly, the prosecution must prove the

following facts before it can bring a case under

Section 300, "thirdly".

First, it must establish, quite objectively, that a

bodily injury is present.

Secondly, the nature of the injury must be proved.

These are purely objective investigations.

Thirdly, it must be proved that there was an

intention to inflict that particular bodily injury,

that is to say that it was not accidental or

unintentional, or that some other kind of injury was

intended.

Once these three elements are proved to be present,

the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the

type just described made up of the three elements set

out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry

is purely objective and inferential and has nothing

to do with the intention of the offender."

The learned Judge explained the third ingredient in the following

words (at page 468):

"The question is not whether the prisoner intended to

inflict a serious injury or a trivial one but whether

he intended to inflict the injury that is proved to

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

the totality of the circumstances justify such an

inference, then of course, the intent that the

section requires is not proved. But if there is

nothing beyond the injury and the fact that the

appellant inflicted it, the only possible inference

is that he intended to inflict it. Whether he knew of

its seriousness or intended serious consequences, is

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neither here or there. The question, so far as the

intention is concerned, is not whether he intended to

kill, or to inflict an injury of a particular degree

of seriousness but whether he intended to inflict the

injury in question and once the existence of the

injury is proved the intention to cause it will be

presumed unless the evidence or the circumstances

warrant an opposite conclusion."

These observations of Vivian Bose, J. have become locus

classicus. The test laid down by Virsa Singh's case (supra) for the

applicability of clause "Thirdly" is now ingrained in our legal system

and has become part of the rule of law. Under clause thirdly of

Section 300 IPC, culpable homicide is murder, if both the following

conditions are satisfied: i.e. (a) that the act which causes death is

done with the intention of causing death or is done with the intention

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

inflicted is sufficient in the ordinary course of nature to cause

death. It must be proved that there was an intention to inflict that

particular bodily injury which, in the ordinary course of nature, was

sufficient to cause death, viz., that the injury found to be present

was the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh's case, 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 Section 300 clearly brings out

this point.

Clause (c) of Section 299 and clause (4) of Section 300 both

require knowledge of the probability of the act causing death. It is

not necessary for the purpose of this case to dilate much on the

distinction between these corresponding clauses. It will be sufficient

to say that clause (4) of Section 300 would be applicable where the

knowledge of the offender as to the probability of death of a person or

persons in general as distinguished from a particular person or persons

\026 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.

The above are only broad guidelines and not cast iron

imperatives. In most cases, their observance will facilitate the task

of the Court. But sometimes the facts are so intertwined and the second

and the third stages so telescoped into each other that it may not be

convenient to give a separate treatment to the matters involved in the

second and third stages.

The position was illuminatingly highlighted by this Court in

State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC

382), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh

(JT 2002 (6) SC 274), and Augustine Saldanha v. State of Karnataka

(2003 (10) SCC 472).

Keeping the aforesaid legal principles in view, the factual

position is to be examined. 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. In the instant case admittedly

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one blow was given with a small stick, and the place where the assault

took place was dimly lit. Inevitable conclusion is that the case is

covered by Section 304 Part I IPC and not Section 302 IPC. The

conviction is accordingly altered. Custodial sentence of 10 years

would meet the ends of justice.

The appeal is allowed to the aforesaid extent.