Alias Aniyan Kunju & Ors Vs. State of Kerala  Insc 37 (21
Raju & Arijit Pasayat
out of SLP (Crl.) No. 3634/2003) ARIJIT PASAYAT,J.
four appellants faced trial for allegedly having caused homicidal death of one Kuttappan
(hereinafter referred to as 'the deceased') on 16.6.1994. They were tried for
commission of offence punishable under Section 302 read with Section 34 of
Indian Penal Code, 1860 (in short 'the IPC'). The learned Sessions Judge, Kottayam,
found all the four accused persons guilty and convicted and sentenced them for
the offence punishable under Section 302 read with Section 34 IPC and sentenced
each of them to undergo imprisonment for life. Fine of Rs.10,000/- with default
stipulation was also imposed. The accused-appellants unsuccessfully challenged
their conviction and sentence before the Kerala High Court which dismissed the
same by the impugned judgment.
version as unfolded during trial is as follows:
was previous enmity between accused persons and the deceased. In furtherance of
their common intention because of such enmity, the accused persons chased and
assaulted the deceased on 16.6.1994 at about 11 p.m. A-2 beat the deceased with
an iron rod on his back and when deceased ran away to save his life, all the
accused persons chased him and near a road side junction, A-4 lighted the torch
carried by him which enabled the other accused persons to beat the deceased
with handles of axe and spade, and iron rod on different parts of the body. The
injuries were caused mostly on the hands, legs and ribs. Only one injury was
inflicted on the head which was the fatal injury.
the deceased was taken to the hospital he breathed his last at about 2.25 a.m. on 17.6.1994. 10 witnesses were examined to further
the prosecution version. Rajan (PW-2) was said to be an eyewitness. The
information was lodged with the police by Anil Kumar (PW-1). Soman (PW-3) was
the brother-in-law of the deceased who was informed about the quarrel between
deceased and the accused persons. The deceased allegedly made a dying
declaration before them implicating the accused persons. The accused persons
pleaded innocence. They pleaded that the actual occurrence was suppressed by
the prosecution and, in fact, the deceased attacked them and caused injuries on
A-1 and A-2. Since the accused persons were attacked, they exercised their
right of private defence and tried to protect themselves and if on account of
that the deceased sustained injuries there was no offence involved. Trial Court
after analyzing the evidence on record came to hold that the plea of right of
private defence was not established. A-1 to A-4 were the authors of the crime.
It also did not accept the contention of A-4 that no overt act was attributed
to him and there was no material to bring him within the field of Section 34
IPC. The Trial court held that evidence of PW-2 inspire confidence. He was a
reliable witness and on his evidence alone the conviction has to be recorded, though
additionally the dying declaration was there.
appeal, the Kerala High Court held that merely because the accused persons have
sustained some injuries, that cannot ipso facto be a ground for throwing out
the prosecution case. Non-explanation of injuries on the accused persons in all
cases is not a ground for discarding the prosecution version. It also did not
find any substance in the plea of the accused-appellants that on the basis of
solitary witness's evidence conviction cannot be recorded.
the plea that offence under Section 302 read with Section 34 IPC was not made
out did not find acceptance by the High Court. It also did not accept the plea
that there was no material for applying Section 34 to A-4. It was noticed that
he was the person who focused the light on the deceased, facilitating the
support of the appeal, learned counsel for the appellant submitted that the
Trial Court and the High Court have lost sight of relevant factors. The
prosecution version itself indicated that there was quarrel between the
deceased and the accused and since the assaults allegedly took place in course
of a sudden quarrel, that too in exercise of right of private defence, the
accused persons should not have been found guilty. It was pointed out that the
prosecution version primarily stands on the solitary evidence of PW-2. The
occurrence, according to the prosecution took place late in the night and it
was completely dark and necessitated focusing of torch by A-4.
materials adduced by the prosecution go to show that no particular injury was
intended. In fact, the post-mortem shows that injuries were on non-vital parts
of the body.
reference to these aspects was highlighted to substantiate the plea that
Section 302 has not attracted.
it is submitted that no offence under Section 34 IPC is made out and so far as
accused A-4 is concerned, as admittedly no assault was done by him and,
therefore, he should not have been convicted.
contra, learned counsel for the State submitted that the Trial Court and the
High Court have given adequate reasons for finding the accused persons guilty
and sentencing them. As they have analysed the factual position in great detail
and have come to the conclusion regarding guilt of the accused, there is no
scope for any interference. According to him the case is squarely covered by
Section 302 IPC.
to the question whether on the basis of a solitary evidence conviction can be
maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872
(in short 'the Evidence Act') would suffice. The provision clearly states that
no particular number of witnesses is required to establish the case. Conviction
can be based on the testimony of single witness if he is wholly reliable.
may be necessary when he is only partially reliable. If the evidence is
unblemished and beyond all possible criticism and the Court is satisfied that
the witness was speaking the truth then on his evidence alone conviction can be
maintained. Undisputedly, there were injuries found on the body of the accused
persons on medical evidence. That per se cannot be a ground to totally discard
the prosecution version. This is a factor which has to be weighed along with
other materials to see whether the prosecution version is reliable, cogent and
the case of the prosecution is supported by an eyewitness who is found to be
truthful, as well, mere non- explanation of the injuries on the accused persons
cannot be a foundation for discarding the prosecution version.
the dying declaration was found to be acceptable.
plea emphasized related to alleged exercise of right of private defence. Merely
because there was a quarrel and two accused persons sustained injuries, that
does not confer a right of private defence extending to the extent of causing
death as in this case. Though such right cannot be weighed in golden scales, it
has to be established that the accused persons were under such grave
apprehension about the safety of their life and property that retaliation to
the extent done was absolutely necessary. No evidence much less cogent and
credible was adduced in this regard. The right of private defence as claimed by
the accused persons have been rightly discarded.
brings us to the crucial question as to which was the appropriate provision to
be applied. In the scheme of IPC culpable homicide is the genus and
"murder", its specie.
"murder" is "culpable homicide" but not vice versa.
generally, "culpable homicide" sans "special characteristics of
murder is culpable homicide not amounting to murder". For the purpose of
fixing punishment, proportionate to the gravity of the generic offence, IPC
practically recognizes three degrees of culpable homicide.
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
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.
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 :
299 Section 300 A person commits Subject to certain exceptions culpable homicide
if the act by culpable homicide is murder if the the death is caused is act by
which the death is caused done - is done –
the intention of causing (1) with the intention of causing death; or death; or
with the intention (2) with the intention of causing of causing such such
bodily injury as the bodily injury as is offender knows to be likely to likely
to cause death; or cause the death of the person to whom the harm is caused; or
(3)With the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature
to cause death; or KNOWLEDGE
the (4) with the knowledge that the knowledge that act is so imminently the act
is likely to dangerous that it must in all cause death. probability cause death
or such bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury as is
(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.
(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 degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the degree of probability
of death which determines whether a culpable homicide is of the gravest, medium
or the lowest degree. The word "likely" in clause (b) of Section 299
conveys the sense of probability as distinguished from a mere possibility. The
words "bodily injury ... sufficient in the ordinary course of nature to
cause death" mean that death will be the "most probable" result
of the injury, having regard to the ordinary course of nature.
cases to fall within clause (3), it is not necessary that the offender intended
to cause death, so long as the death ensues from the intentional bodily injury
or injuries sufficient to cause death in the ordinary course of nature. Rajwant
Singh v. State of Kerala (AIR 1966 SC 1874) is an apt
illustration of this point.
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.
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.
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';
it must establish, quite objectively, that a bodily injury is present;
the nature of the injury must be proved; These are purely objective
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.
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
question is not whether the prisoner intended to inflict a serious injury or a
trivial one but whether he intended to inflict the injury that is proved to be
present. If he can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course, the intent that the
section requires is not proved. But if there is nothing beyond the injury and
the fact that the appellant inflicted it, the only possible inference is that
he intended to inflict it. Whether he knew of its seriousness, or intended
serious consequences, is neither here nor there. The question, so far as the
intention is concerned, is not whether he intended to kill, or to inflict an
injury of a particular degree of seriousness, but whether he intended to
inflict the injury in question; and once the existence of the injury is proved
the intention to cause it will be presumed unless the evidence or the circumstances
warrant an opposite conclusion." These observations of Vivian Bose, J.
have become locus classicus. The test laid down by Virsa Singh case (supra) for
the applicability of clause "thirdly" is now ingrained in our legal
system and has become part of the rule of law.
clause thirdly of Section 300 IPC, culpable homicide is murder, if both the
following conditions are satisfied i.e.
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
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.
according to the rule laid down in Virsa Singh case (supra) even if the
intention of the accused was limited to the infliction of a bodily injury
sufficient to cause death in the ordinary course of nature, and did not extend
to the intention of causing death, the offence would be murder.
(c) appended to Section 300 clearly brings out this point.
(c) of Section 299 and clause (4) of Section 300 both require knowledge of the
probability of the act causing death. It is not necessary for the purpose of
this case to dilate much on the distinction between these corresponding
clauses. It will be sufficient to say that clause (4) of Section 300 would be
applicable where the knowledge of the offender as to the probability of death
of a person or persons in general as distinguished from a particular person or
persons - being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender must be of the
highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as
above are only broad guidelines and not cast-iron imperatives. In most cases,
their observance will facilitate the task of the court. But sometimes the facts
are so intertwined and the second and the third stages so telescoped into each,
that it may not be convenient to give a separate and clear cut treatment to the
matters involved in the second and third stages.
position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382 and Abdul Waheed
Khan alias Waheed and ors. v. State of A.P.
(2002 (7) SCC 175).
factual scenario goes to show that late at night in a stage of complete
darkness, the occurrence took place.
to the prosecution itself for visibility A-4 used the torch and focused the
light on the deceased so that the other accused persons could assault him. The
distance from which the light was focused is also not very small. It was no
doubt possible on the part of the accused persons to place the deceased and
assault him; but taking into account the fact that almost all the injuries were
on non-vital parts and only one was on head, it cannot be definitely said that
any particular injury was intended. As noticed by Courts below weapons used
were not of considerable weight or length. They axe or spade was not used but
their handles of small length and weight were used. Taking the totality of the
evidence into consideration and the special features noticed, it would be
appropriate to convict the accused persons under Section 304 Part I read with
Section 34 IPC instead of Section 302 IPC. A-4 has been rightly roped in under
Section 34. He accompanied the accused persons, and actively facilitated the
assaults to be effectively made on the accused by focusing the torch. His
conduct prior and subsequent to the occurrence clearly shows that he shared the
common intention so far as the assaults on the deceased is concerned. Custodial
sentence of 10 years would meet the ends of justice. The appeal is partly
allowed to the extent indicated.