Pal & Ors Vs. The State of Haryana 
Insc 215 (19 April 2006)
Pasayat & S.H. Kapadia
out of S.L.P.(Crl.) No.5228 of 2005) ARIJIT PASAYAT, J.
in this appeal is to the judgment of learned Single Judge of the Punjab and Haryana High Court dismissing
the appeals filed by the appellants. Learned Additional Sessions Judge, Gurgaon
had convicted the appellants and one Dharam Singh for offence punishable under
Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 (in
short 'IPC'). They were also convicted for offence punishable under Section 325
read with Section 34 IPC as well as Section 323 read with Section 34 IPC. They
were sentenced to undergo RI for ten years and to pay a fine of Rs.2,000/-; in
default of payment of fine they were directed to undergo RI for six months for
the first named offence. They were further sentenced to undergo RI for two
years and six months respectively for other two offences. Fine of Rs.500/- with
default stipulation was imposed. Two other accused persons, namely, Vijay Singh
and Rattan Singh were released on probation for a period of two years under
Section 4 of the Probation of Offenders Act, 1958 (in short 'Probation Act') in
respect of their conviction under Section 323 IPC. Accused Vijay Singh died on
Raj Pal, Bir Singh and Chhater Pal question their conviction and sentences
factual background in a nutshell is as follows:-
appellants are sons of one Bhanwar Singh, and grandson of one Ariya alias Arimal.
The complainant and party are their collateral. Arimal had another son Hira
Singh (hereinafter referred to as 'deceased') and Pirthi Singh (PW-7) are sons
of Hira Singh. Said Hira Singh had two more sons, namely, Suraj Bhan and Om Parkash.
Sanjay (PW- 6) is son of Pirthi Singh (PW-7).
betrothal ceremony of Ajit son of deceased Sube Singh was to take place on
27.2.1990. On 24.2.1990, Sanjay (PW-6) went to the house of his uncle, the
deceased to help him in making preparations for the occasion. An iron gate
fixed in the boundary wall of the house of Sube Singh (deceased) had got
dislocated. They were re-fixing it by applying cement. The time was about 10
a.m. Appellants -Raj Pal, Bir Singh, Chhatter Pal and Dharam Singh (since
deceased) came there armed with lathis and jellies. They desisted Sanjay and
deceased from repairing the gate asserting that they had also a share in the
property. Deceased told them that they had no right over the property and they
had got their property in the partition. The appellants and Dharam Singh abused
deceased. In a fit of anger, Raj Pal gave a lathi blow on the head of deceased.
Chhatter Pal also gave a lathi blow on his head. Bir Singh gave a jelli blow on
the left leg of the deceased. Sanjay (PW-6) intervened to rescue the deceased. Bir
Singh gave Jelli blow on the right wrist of Sanjay; Dharam Singh gave a lathi
blow on the left hip of Sanjay. Thereafter, Rattan Singh and Vijay Singh
appellants also came there armed with jelli and lathi, respectively and joined
the fray. Vijay Singh gave a lathi blow on the right side of the jaw of Sanjay,
Rattan Singh gave jelli blow on his right thigh. Pirthi Singh (PW-7) father of
Sanjay along with Randhir Singh cousin of Sanjay came there on hearing the
alarm raised by Sanjay. Raj Pal gave lathi blow on the head of Pirthi Singh
(PW-7); Chhatter Pal gave a lathi blow on his right shoulder. Bir Singh gave a jelli
blow on the head of Randhir Singh. Tej Pal and Mahender Singh arrived at the
place of occurrence and rescued the victims from the attack of the accused
persons. The injured persons were taken to the hospital. Deceased breathed his
last on 25.2.1990 at about 8.40 p.m. at
the Safdarjung Hospital.
completion of investigation, charge sheet was filed.
accused persons pleaded innocence and denied the charges, trial was held.
witnesses were examined. The statements of the accused were recorded under
Section 313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'). As noted
above, the accused persons pleaded innocence. It was their plea that the
deceased with the help of some PWs was raising construction on the disputed
plot claiming his share in the plot. When they objected, the deceased who
wanted to grab their share assaulted the accused persons along with others.
acted in self defence of person and property. The Trial Court on consideration
of the evidence on record directed the conviction and imposed sentence as
aforementioned. Appeal filed before the High Court was dismissed. The Trial
Court noted that there was no intention to commit murder and the accused
persons did not repeat the blows on the head of the deceased. But knowledge can
be clearly attributed to them that by giving blow on the head of the deceased
death was only consequence. As the accused persons acted in furtherance of the
common intention they were punishable under Section 304 (1) IPC read with
Section 34 IPC. The High Court did not accept the plea of exercise of right of
private defence and also did not accept the plea that death was not intended.
The appeal filed by the accused persons was dismissed; so was the appeal filed
by the complainant for alteration of conviction.
support of the appeal, learned counsel for the appellants submitted that the
Trial Court and the High Court did not take note of the fact that the accused
persons had suffered serious injuries. In any event, the Trial Court having
noted that there was no intention to cause homicidal death should not have
convicted the accused in terms of Section 304 Part I, IPC.
counsel for the respondent-State supported the judgments of the trial Court and
the High Court.
number of injuries is not always a safe criterion for determining who the
aggressor was. It cannot be stated as a universal rule that whenever the
injuries are on the body of the accused persons, a presumption must necessarily
be raised that the accused persons had caused injuries in exercise of the right
of private defence. The defence has to further establish that the injuries so
caused on the accused probabilises the version of the right of private defence.
Non- explanation of the injuries sustained by the accused at about the time of
occurrence or in the course of altercation is a very important circumstance.
But mere non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it far outweighs the effect of the omission
on the part of the prosecution to explain the injuries. [See: Lakshmi Singh v.
State of Bihar (AIR 1976 SC 2263). A plea of right
of private defence cannot be based on surmises and speculation. While
considering whether the right of private defence is available to an accused, it
is not relevant whether he may have a chance to inflict severe and mortal
injury on the aggressor. In order to find whether the right of private defence
is available to an accused, the entire incident must be examined with care and
viewed in its proper setting. Section 97 deals with the subject- matter of
right of private defence. The plea of right comprises the body or property
of the person
exercising the right; or
of any other
person; and the right may be exercised in the case of any offence against the
body, and in the case of offences of theft, robbery, mischief or criminal
trespass, and attempts at such offences in relation to property. Section 99
lays down the limits of the right of private defence. Sections 96 and 98 give a
right of private defence against certain offences and acts. The right given
under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a
right of private defence extending to voluntary causing of death, the accused
must show that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him. The
burden is on the accused to show that he had a right of private defence which
extended to causing of death. Sections 100 and 101, IPC define the limit and
extent of right of private defence.
102 and 105, IPC deal with commencement and continuance of the right of private
defence of body and property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an attempt, or
threat, or commit the offence, although the offence may not have been committed
but not until that there is that reasonable apprehension. The right lasts so
long as the reasonable apprehension of the danger to the body continues.
Dev v. State of Punjab (AIR 1963 SC 612), it was observed
that as soon as the cause for reasonable apprehension disappears and the threat
has either been destroyed or has been put to route, there can be no occasion to
exercise the right of private defence.
above position was highlighted in Rizan and Another vs. State of Chhattisgarh,
through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003
(2) SCC 661), and Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).
because there was a quarrel and some of the 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. All "murder" is "culpable
homicide" but not vice versa. Speaking 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. 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.
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 - INTENTION
intention of causing (1) with the intention of causing death; or death; or
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
with 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
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. 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.
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. Under
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
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.
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. Illustration
(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
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 aforesaid.
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).
the totality of the evidence into consideration and the special features
noticed, it would be appropriate to convict the accused persons in terms of
Section 304 Part II read with Section 34 IPC instead of Section 304 Part I read
with Section 34 IPC. Custodial sentence of 7 years would meet the ends of
appeal is partly allowed to the extent indicated.