Pappu @ Hari Om Vs.
State of M.P.  INSC 667 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 599 OF 2009
(Arising out of S.L.P. (Crl.) No.7844 of 2007) Pappu @ Hari Om ..Appellant
versus State of Madhya Pradesh ..Respondent
Dr. ARIJIT PASAYAT,
1. Leave granted. 2.
Challenge in this appeal is to the judgment of the Division Bench of the Madhya
Pradesh High Court, Jabalpur Bench, which affirmed the conviction of the
appellant for the offences punishable under Sections 302 of the Indian Penal
Code, 1860 (in short the `IPC'). He was sentenced to undergo imprisonment for
life and to pay a fine of Rs.500/- with default stipulation. Accused Bal Kishan
was convicted for offence punishable under Section 302 read with Section 34
IPC. The convictions were recorded by learned Additional Sessions Judge, Gohad,
Bhind, M.P. in Sessions Case No.11/95. The conviction as recorded by the Trial
Court was assailed by two separate appeals. As accused-appellant Bal Kishan
died during the pendency of the appeal, the same stood abated.
version in a nutshell is as follows:
On 2.11.1994 at about
9.30 p.m. Ram Babu (PW-1), Jagdish (PW- 12), Sanjeev Kumar (PW-14) and Ramesh
(hereinafter referred as `deceased' were playing cards near the house of
Kishanlal under an electric pole. The appellant Pappu @ Hari Om alongwith
co-accused Bal Kishan came there and asked the persons who were playing cards
to permit them to play with them. Ramesh objected to it and this gave rise to
quarrel between Ramesh and the accused Pappu @ Hari Ram & Bal Kishan. Both
Balkishan and Pappu @ Hari Om went away after abusing Ramesh. After sometime,
they returned back from the lane of Rahim Khan Ki Gali. Papu @ Hari Om had a 12
bore gun in his hand. Both accused abused Ramesh and Pappu @ Hari Ram fired gun
shots, which caused injuries on the right shoulder of Ramesh and he fell down.
Bablu (PW-2) and other persons took him to the hospital on a handcart, where
Ramesh was declared dead. The report of this incident was lodged by Rambabu
(PW-1), which is marked as Ex.P-1. On the basis of this report, Crime No.261/94
was registered against the accused.
4. Before the High
Court the basic stand was that the independent witnesses did not support the
prosecution version and it was only the evidence of PW-14 who supported the
prosecution version. Additionally, it was submitted that the case at hand is
not one which is covered by Section 302 IPC. The High Court did not find any
substance in the aforesaid plea and dismissed the appeal.
5. Learned counsel
for the appellant reiterated the plea taken before the High before this Court.
Learned counsel for the respondent-State supported the judgment.
6. Coming to the plea
relating to acceptability of evidence, PW-10 who reached the spot after hearing
the sound of firing stated that when he reached the spot he found Ramesh was
lying in an injured condition and was told by the deceased that the accused
persons had fired. Since there was wound on the chest of the deceased he was
taken to the hospital. In his evidence Sanjeev Kumar (PW-14) stated that in the
night of occurrence at about 9:30 p.m. which was Diwali night he was playing
cards with four others, Balkishan and the present appellant came there. There
was exchange of hot words between the accused with the deceased and the
appellant fired the shot and caused injuries on the chest of the deceased who
died while being taken to the hospital. There is no reason to discard the
7. This brings us to
the crucial question 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 304.
8. The 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 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 6 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.
9. Clause (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.
10. Clause (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" mean
that death will be the "most probable" result of the injury, having
regard to the ordinary course of nature.
11. For 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.
12. In 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
13. The 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.
11 This part of the
enquiry is purely objective and inferential and has nothing to do with the
intention of the offender."
14. The learned Judge
explained the third ingredient in the following words (at page 468):
"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 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.
16. Thus, according
to the rule laid down in Virsa Singh's case (supra), 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.
appended to Section 300 clearly brings out this point.
17. Clause (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
18. The 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.
19. The 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), Augustine Saldanha v.
State of Karnataka (2003 (10) SCC 472), Thangaiya v. State of Tamil Nadu (2005
(9) SCC 650) and Sunder Lal v. State of Rajasthan (2007 (10) SCC 371).
20. Considering the
part of the body where the bullet fired hit the deceased, in our considered
opinion the appropriate conviction would be under Section 304 Part II IPC.
Custodial sentence of 8 years would meet the ends of justice. It appears from
the record that the appellant has suffered custody of more than that period. He
shall be released forthwith unless required to be custody in any other case.
(Dr. ARIJIT PASAYAT)