Laxminath Vs. State of
Chhattisgarh  INSC 79 (16 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 75 OF 2009
(Arising out of S.L.P (Crl.) No.6403 of 2006) Laxminath ....Appellant Versus
State of Chhattisgarh ....Respondent
DR. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Chhattisgarh
High Court upholding the conviction of the appellant for the offences
punishable under Sections 302 and 324of the Indian Penal Code, 1860 (in short
the `IPC'). The accused persons were sentenced to undergo imprisonment for life
and for two years respectively for the said offences.
version as unfolded during trial is as follows:
Mahgin Bai (PW-1)
lodged the F.I.R (Ex. P-1) in the Police Station Bhairamgarh on 4.2.1993 at
about 12.30 p.m. to the effect that on 3.2.1993 she was thrashing paddy in the
house. At that time her mother-in-law Gangadei (hereinafter referred to as the
`deceased') was preparing page.
Accused Laxminath who
is husband of her sister-in-law, came and demanded page. Her mother-in-law gave
page to the accused. He thereafter demanded tobacco, on which her mother-in-law
gave him tobacco also and accused left the house. Thereafter, the accused came
with bow & arrow and shot the arrow on her, which hit on her left upper arm
and blood started oozing out of it. Accused also shot an arrow on her
mother-in-law, which hit on chest, blood started oozing out of the injury and
accused ran away. Her uncle-in-law Dhaniram (PW2) witnessed the incident, brought
the villagers and by that time, her mother-in-law was alive. Arrow was stuck in
the chest of her mother-in-law. Villagers took her mother-in-law to Police
Station Bhairamgarh from where they took her to Jagdalpur Hospital, but on the
way near Mawlibhata Gangadei she succumbed to the injury. Receiving this
report, the police registered the FIR (Ex. P-1). The Investigating Officer left
for the scene of occurrence and took into possession the bow under Ex.P-2.
Officer gave a written request Ex. P-3 to the Assistant Surgeon, Primary Health
Centre, Bhairamgarh for examination of the injuries of Mahgin Bai, on which
doctor examined and prepared the injury report and mentioned that there was one
incised wound over left upper arm.
Arrow, weapon of
offence was taken into possession under Ex.P-4 and the petticoat of deceased
Gangadei was taken into possession under Ex.P-5.
Blood stained soil
and plain soil was taken into possession under Ex.P-6 from the place of
occurrence. Arrow in question was examined by the doctor on the request of
Station House Officer Ex.P-7 and doctor opined that the injury on the body of
Mahgin Bai could be caused by the said arrow. Panchnama (Ex.P-10) of the body
of Gangadei was prepared after giving notice Ex.P-9 to the Panchas. Postmortem
on the body of deceased Gangadei was conducted by Dr. S.K. Naik and he prepared
the post mortem report. There was a dying declaration before PW-6.
After completion of
investigation, charge sheet was filed against the accused/appellant in the
Court of learned Additional Chief Judicial Magistrate, Jagdalpur, who in turn
committed the case to learned Sessions Judge, Jagdalpur from where learned 1st
Additional Sessions Judge, Jagdalpur received the case on transfer for trial.
As accused pleaded innocence, trial was held. Learned trial Judge recorded
conviction as noted above.
Before the High Court
the basic stand was that the evidence was not sufficient to fasten guilt on the
accused. The oral dying declaration was not believable.
It was also submitted
that only one arrow was shot from a distance and, therefore, Section 302 IPC
has no application. The High Court did not accept the plea and upheld the
conviction and the sentence.
stand before the High Court was reiterated before this Court.
counsel for the respondent, on the other hand, supported the judgment of the
trial Court as affirmed by the High Court.
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.
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 6 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 7 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 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 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 11 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."
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 factual scenario and the facts that one arrow was shot the offence is
covered by Section 304 Part I IPC and not Section 302 IPC. Though it cannot be
laid down that whenever one arrow is shot Section 302 IPC will not apply, on
the facts of the present case it appears to be so. Therefore, conviction is
altered from Section 302 IPC to Section 304 Part I IPC. Custodial sentence of
eight years would meet the ends of justice.
is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)