Harendra Nath Borah Vs. State of Assam  Insc 70 (24 January 2007)
Arijit Pasayat & S.H. Kapadia (Arising out of Slp (Crl.) No.5338 of 2006) Dr.
Arijit Pasayat, J.
in this appeal is to the judgment of the Guwahati High Court upholding
appellant's conviction under Section 302 of the Indian Penal Code, 1860 (in
short the 'IPC') and sentence of imprisonment for life as awarded by the
learned Sessions Judge, Dhemaji.
which led to the trial of the appellant are essentially as follows:
Verma lodged a written complaint to the Superintendent of Police, East Siang, Arunachal Pradesh on 29.9.2000
alleging that on 26.9.2000 one Fekan Das (hereinafter referred to as the
'deceased') was driving a Truck No.AS-25/641. At about 11.00 p.m. when the truck reached Ruksing Gate, the police
personnel of Jonai Police Station came there in a three wheeler and assaulted
deceased became senseless and the police left him on the road and returned to the
police station. It was further alleged that the deceased was brought to the Pasighat General Hospital for treatment. On 28.9.2000, he was referred to Dibugarh
for treatment and on 29.9.2000 on way to the hospital his condition became
serious and he died while being brought to Pasighat.
aforesaid information was registered. The investigation was undertaken and
charge sheet was placed.
accused was absconding and, therefore, no test identification parade could be
held. On conclusion of investigation, the Investigating Officer submitted the
charge sheet indicating commission of offence punishable under Section 302 IPC.
Charge was framed after he was arrested. In order to substantiate its
accusations 16 witnesses were examined. The accused pleaded innocence. On
analysis of the evidence tendered, the Trial Court found the accused guilty and
convicted and sentenced as aforesaid. An appeal was preferred before the High
Court. The main stand of the accused-appellant was that the evidence of the eye
witnesses cannot be relied upon as there was delay in lodging the FIR, and
conviction was vitiated. Further no sanction was obtained as required under
Section 197 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The
stand of the respondent-State on the other hand was that the evidence of PWs.
5, 6 and 7 had clearly established the accusations. It was submitted that the
deceased was assaulted without any fault on his part. Further, it was pointed
out that since the appellant, a police personnel was involved there was effort
on the part of the other officials not to accept the information given and
ultimately the grievance was made before the Superintendent of Police. The High
Court found that the evidence of the three witnesses who were stated to be eye
witnesses left no manner of doubt that the accused was guilty.
the appeal was dismissed.
counsel for the accused submitted that even if the accusations are accepted in toto,
the offence under Section 302 IPC is not made out.
counsel for the respondent on the other hand supported the judgment and the
conviction and sentence as passed by the Trial Court and affirmed by the High
crucial question is 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 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
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 culpable homicide Subject to certain
exceptions if the act by which the death is culpable homicide is murder caused
is done 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 **** (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.
(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 to cause death" 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
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.
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:
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 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.
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.
(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
other that it may not be convenient to give a separate treatment to the matters
involved in the second and third stages.
position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.
(4) SCC 382), Abdul Waheed Khan @ Waheed and Ors.
State of Andhra Pradesh (2002 (7) SCC 175), Augustine Saldanha
v. State of Karnataka (2003 (10) SCC 472) and in Thangiya
v. State of T.N. (2005 (9) SCC 650).
the factual background of the case is analysed on the touchstone of principles
set out above, the inevitable conclusion is that the case at hand is not
covered under Section 302 IPC and on the other hand the case is covered under
Section 304 Part I IPC. The conviction is accordingly altered. Custodial
sentence of 10 years would meet the ends of justice.
appeal is allowed to the aforesaid extent.