Santhanam Vs. State of
Tamil Nadu  INSC 824 (24 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 826 OF 2009
(Arising out of S.L.P. (Crl.) No.7458 of 2008) Santhanam ..Appellant Versus
State of Tamil Nadu ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Madras High
Court, Madurai Bench, upholding the conviction of the appellant for offence
punishable under Sections 302 of the Indian Penal Code, 1860 (in short the
`IPC'). The co-accused was tried for offence punishable for offence punishable
under Section 302 read with Section 114 and 506(2) IPC and was found not guilty
and was acquitted of the charges.
version, in a nutshell, is as follows:
The incident in
question took place at around 2 p.m. on 9.12.2001, P.W.1 and her husband were
working in the Postal Department and they are the owners of land in their
native place, Kanjeerimalaipudur Kattukottagai.
(hereinafter referred to as the `deceased') was employed with them as a farm
servant. The land of the accused-appellant is situated adjacent to the land of
P.W. 1. They had a dispute regarding water pipe line.
Two days before the
date of incident i.e. 9.12.2001 when the deceased was irrigating, the appellant
closed the water pipe line. The deceased asked him why he had closed the water
pipe line, the appellant abused him and assaulted him with a stick. The
deceased filed a complaint in the Uppiliyapuram Police Station. When P.W. 1 and
her husband came to know about the same on 11.12.2001, they wanted to convene a
Panchayat and, therefore, P.W.1, her husband and others gathered in front of
the house of P.W. 1 at about 2.00 p.m. At that time, the appellant and the
second accused came in a TVS 50 vehicle and both of them pulled the deceased
Thiruppathy and assaulted him with hands. They intervened and prevented them
from attacking the deceased. When the deceased, Thiruppathy went to the house
of Dhandapani, the appellant and the second accused followed the deceased.
attacked the deceased, Thiruppathy with a wooden log on his right shoulder,
right forearm and on his head and the deceased fell down and fainted. The
second accused took out billhook out of his shirt and threatened the witnesses
with dire consequences. Then the second accused gave billhook to the appellant
and both of them ran away from the place of occurrence. Immediately thereafter,
P.W. 1 and her husband, Ramalingam went to Uppiliyapuram Police Station and
gave a complaint and on the basis of which F.I.R. was lodged and a case was
registered as Crime No. 658/2001 under Section 302 I.P.C. and investigation
started. P.W.12, conducted the Post-Mortem on 12.12.2001 and opined that the
deceased appeared to have died of shock and haemorrhage due to injuries
sustained on head.
undertaken and on completion thereof the chargesheet was filed.
The case was
committed to the Court of Sessions. Charges were framed. Since the accused
persons pleaded innocence, trial was held.
In order to establish
accusations, 14 witnesses were examined. In order to prove its plea of
innocence, three witnesses were examined. The Trial Court found that
accusations were not established against the second accused and he was
acquitted. Before the High Court the primary stand was that the so called eye
witnesses could not have seen the occurrence as claimed. This according to PW.4
she actually did not see the occurrence and also not did not see the accused
persons assaulting but she came and found that the deceased was lying severely
injured. It was also submitted that the medical evidence was at variance with
the so called ocular evidence. Large number of criminal and civil cases were
pending between the parties and the present case was the outcome of enmity. In
any event, the occurrence took place in course of altercation and Section 302
IPC has no application. The deceased was working under PW1 and her husband. On
the earlier occasion when the deceased went over to the field and questioned
the conduct of the accused, altercation took place and complaint was given
against him. Panchayat was convened. It was also submitted that the injuries
were on non-vital parts and, therefore, it cannot be said that the accused had
intention to cause death. The High Court did not accept the stand that the
occurrence took place in the course of altercation and other pleas.
stand taken before the High Court was reiterated in the present appeal. Learned
counsel for the respondent-State supported the judgment.
basic question is whether Section 302 IPC has application.
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
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.
6 Section 299
Section 300 A person commits culpable homicide Subject to certain exceptions if
the act by which the death is caused is done- culpable homicide is murder 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 **** 7 (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 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 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"
means 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
and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this
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 is 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
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."
learned Judge explained the third ingredient in the following words (at page
"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 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 12 cause it will be
presumed unless the evidence or the circumstances warrant an opposite
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
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
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. (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) and Thangaiya v. State of
Tamil Nadu (2005 (9) SCC 650).
the peculiar facts of the case, the proper conviction would be under Section
304 Part I. Custodial sentence of 10 years would meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)