Harjinder Singh Alias Jinda Vs. Delhi
Administration  INSC 259 (14 November 1967)
14/11/1967 SIKRI, S.M.
CITATION: 1968 AIR 867 1968 SCR (2) 246
R 1975 SC 179 (8) R 1981 SC1441 (3) R 1981
SC1552 (11,12) RF 1986 SC 683 (7)
Indian Penal Code, s. 302 and s. 304--Murder
and culpable homicide-Ingredients of offence of murder.
The appellant was convicted by the Sessions
Judge under s.
302 of the Indian Penal Code and the
conviction was upheld by the High Court. According to the prosecution evidence
the appellant was trying to assault one D when the latter's brother K
intervened. The appellant took out a knife and caused an injury on K's thigh
which cut an artery and resulted in his death. In appeal, by special leave,
before this Court it was urged that in the circumstances of the case the
intention and knowledge requisite for an offence under s. 302 I.P.C., had not
HELD: (i) The appellant had not used the
knife while he was engaged in the fight with D. It was only when he felt that
the deceased also came up against him that ..he whipped out the' knife. The
deceased was at that time in a crouching position. In these circumstances it
could not be said that the appellant intended to cause the injury in the thigh
knowing that it would cut-the artery. It was, therefore, not possible to apply
cl. 3 of s. 300 to the act of the accused, and he was not guilty of murder.
[250 G-H] Virsa Singh v. State of Punjab.  S.C.R. 1495, applied.
(ii) However, when the appellant struck the
deceased with the knife, he must have known that the deceased then being in a
bent position, the blow would land in the abdomen or near it--a vulnerable'
part of the human body--and that such a blow was likely to result in his death.
In these circumstances it would be quite legitimate to hold that he struck the
deceased with the knife with the intention to cause an injury likely to cause
death. The offence, therefore. clearly fell under s. 304 Part 1. [251 B-C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 21 of 1965.
Appeal by special leave from the judgment and
order dated May 19, 1964 of the Punjab High Court, Circuit Bench at Delhi in
Criminal Appeal No. 7-D of 1963.
A.S.R. Chari, C.L. Sareen and R.L. Kohli, for
B.R.L. lyenger, S.P. Nayar for R.N. Sachthey,
for the respondent.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave was limited to the question whether the
case comes under s. 302 of the Indian Penal Code. The case of the prosecution
which has been accepted by 247 the learned Sessions JUdge and the High Court
was,. in brie as follows:
On January 31, 1962, at about 2.30 p.m., a
fight took place' between Dalip Kumar, P.W. 12, and Harjinder Singh, appellant,
near the water tap in front of a tin factory in Zamirwali lane, Delhi.
Harjinder was apparently worsted in the fight and he then left the place
holding out a threat that he would teach a lesson to Dalip Kumar. The
returned with his brother Amarjit Singh to
the house of Dalip Kumar and shouted to Dalip Kumar to come out. Mst.
Tejibai opened the door of the house and
asked the appellant and Amarjit Singh to go away, but either these two or the
appellant pulled Dalip Kumar out of the house into the lane and gave him
beating near a lamp-post in the comer of Zamirwali lane. At. that time the
deceased Kewal Kumar, who was the brother of Dalip Kumar, came and tried to
intervene and rescue his brother. It is at this stage that the evidence conflicting
as to what exactly happened, According to one version, Amarjit Singh accused
caught hold of Kewal Kumar and the appellant took out the knife and stabbed the
deceased. According to the other version, given by Mohd. Ali, P.W. 5, this is
"Dalip Kumar's brother holding Jinda
accused asked him not to fight. Jinda at that time took out the knife from his
pocket and opened it with both his hands and then gave a blow with it under the
belly and the upper portion of the left thigh. Amarjit Singh accused did not
do. anything." In cross-examination he stated:
"Jinda accused was holding Dalip Kumar
from the collar of his shirt by his left hand.
At that time Kewal Kumar was on right hand
side of Jinda accused. When Jinda took out the knife and opened it with both
his hands, Dalip Kumar and his brother Kewal were grappling with Jinda accused
Jinda accused gave only one knife blow to Kewal Kumar. Kewal Kumar was m bent
condition when he was stabbed only once." After inflicting this injury the
appellant ran away.
Dr. G..S. ,Mittal, P.W. 8, noted the
following injuries on the person of the deceased:
1. A stab wound 1"x1/4"x? On left
thigh upper and below the inguinal ligament.
2. Abrasion l" x linear on back of left
He described the other features of the
injuries as follows:
248 "The direction of the stab wound was
Oblique and was going medially. Sartorius muscle was cut underneath along with
femoral artery and vein. Cut over major part of their diameter. There was
effusion of blood in the muscles and around the track over left thigh upper
end..." He deposed that death was due to shock and hemorrhage from injury
to femoral vessels by stab wound of the thigh. He further stated:
"It is correct that femoral artery and
vein are important main vessels of. the body.
The cutting of these vessels would result in
great loss of blood. The cutting injuries of these vessels could result in
immediate death or after short duration." It was urged before the Sessions
Judge 0n behalf of the appellant that, in the circumstances of the case; the
offence, if at all committed, Would fall under s. 326, I.P.C. The learned
Sessions Judge, relying on Virsa Singh v. State of Punjab (1), he/d:
"In this case, the prosecution has
proved that the bodily injury, the nature of which has been described above was
This injury was caused with the pen knife
deliberately. It was not accidental or unintentional. Injury of any other kind.
was not intended. This injury in the opinion of this doctor was sufficient in
the ordinary course of nature to cause death. This being so the case 1958
S.C.R. 1495 would apply and the offence which the accused Jinda has committed
falls u/s 302 Indian Penal Code." The High Court, on appeal, over-ruled a
similar contention in the following words:
"Lastly, the counsel has attempted to
take the case out of the purview of the offence of murder. It has been
contended that it was.
just a small knife with which a blow was
given and that it was not on the vital part of the body and, therefore, the
appellant should not be held guilty of murder. In my opinion, the contention is
wholly unsustainable. The deceased, a boy of about 16 years of age had merely
come to help his brother, when the appellant, who had deliberately come armed with
knife from his house, stabbed the deceased with that knife on vulnerable part.
1 do not see how the (1)  S.C.R. 1495.
249 offence can be considered not to fall
within the purview of murder." Later, the High Court observed:
"It is futile to contend that he did not
intend to kill the deceased. The injury and the weapon are quite eloquent in
this respect." The learned counsel for the appellant, Mr. Chari, contends
on the facts established in this case no offence under s. 302 s been committed and
the appellant should have been connected under s. 326 or at the most under s.
304, part two. The learned counsel for the respondent strongly relies. on the
decision this Court in Virsa Singh v. Slate of Punjab(1) and he says at all the
ingredients laid down in that case by this Court are ascent in this case and,
therefore, the High Court was correct in firming the conviction of the
appellant under s. 302, I.P.C.
It seems to us. that all the ingredients
which were laid down this Court in that case have not been established in this
case. Bose, J., speaking for the. Court observed:
"To put it shortly, the prosecution must
prove the following facts before it can bring a case under s. 300,
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
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." The learned Judge further explained the third
ingredient at p. 1503 in the following words:
"The question is not whether the
prisoner intended to inflict a serious injury or a trivial one but whether he
(1)  S.C.R. 1495.
250 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.
In Rajwant singh v.State of Kerala(1),
referring to Virsa Singh v. state of
"As was laid down in Virsa Singh v.
State of Punjab... for the application of this clause it must be first
established that an injury is caused, next it must be established objectively
what the nature of that injury in the ordinary course of nature is. If the.
injury is found to be sufficient to cause
death one test is satisfied. Then it must be proved that there was an intention
to inflict that very injury and not some other injury and that it was not
accidental or unintentional. If this is also held against the offender the
offence of murder is satisfied." It seems to us that the. High Court has
not considered whether the third ingredient laid down by Bose, J. in Virsa
Singh v. State Punjab(2) has been proved in this case or not. In our opinion
the circumstances justify the inference that the accused did not intend to
cause an injury on this particular portion of the thigh. The evidence indicates
that while the appellant was trying to assault Dalip Kumar and the deceased
intervened, the appellant timing 'himself one against two took out the knife
and stabbed 1he deceased, It also indicates that the deceased at that stage was
in a crouching position presumably to intervene and separate the two. It
cannot, therefore, be said With any definiteness that the appellant aimed the
blow tat this particular part of the thigh knowing that it would cut the
artery. It may be observed that the appellant had not used the knife While he
was engaged in the fight with Dalip Kumar. It was only when he felt that the
deceased also came up against him that he whipped out the knife.
(1) A.I.R. 1965 S.C.1874, 1878 (2) 
S.C.R. 1495 251 in these circumstances it cannot be said that it has been
proved that it was. the intention of the appellant to inflict this particular
injury on tiffs particular place.
It is, therefore, not possible to apply cl. 3
of s. 300 to the act of the accused.
Nevertheless, the deceased was in a crouching
position when the appellant struck him with the knife. Though the knife was
" 5 to. 6" in length including the handle it was nonetheless a
dangerous weapon. When the appellant struck the deceased with the knife, he
must have known that the deceased then being in a bent position the blow would
land in the abdomen or near it a vulnerable part of the human body and that
such a blow was likely to result in his death.
In these circumstances it would be quite
legitimate to hold that he struck the deceased with the knife with the
intention to cause an injury likely to cause death. We are, therefore, of
the-opinion that the offence falls under s. 304 Part 1.
The appeal is allowed and the conviction is
altered from one under s. 302 to s. 304 Part 1 and the appellant is sentenced
to seven years rigorous imprisonment.
G.C. Appeal allowed.