Jai Prakash
Vs. State (Delhi Administration) [1991] INSC 24 (5 February 1991)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Pandian, S.R. (J) Fathima Beevi,
M. (J)
CITATION:
1991 SCR (1) 202 1991 SCC (2) 32 JT 1991 (1) 288 1991 SCALE (1)114
ACT:
Indian
Penal Code-Section 300 Clause Thirdly, 302-Held `intention' if established as
ingredient-Offence would be murder-`intention' `motive', `knowledge'-Difference
explained-Words `intention'-`Knowledge' in Section 300-True meaning of.
HEAD NOTE:
The appellant,
had illicit connection with Agya Devi (P.W. 3), wife of the deceased and in
that connection he used to visit her house quit frequently to which the
deceased and his two brothers & mother living separately in the adjacent
house used to object. It may be pointed that the Agya Devi was related to the
appellant's wife. On August
18, 1973, at about 11 p.m. when the deceased was not in house, the appellant
came to visit Agya Devi. A short while later, the deceased also came home and
he objected to the presence of the appellant whereupon an altercation and
exchange of hot words ensued between the appellant and the deceased. The
appellant took out a kirpan (chhurra) from his waist and stabbed the deceased
in the chest. The deceased fell down crying that the appellant has killed him
and the appellant fled away with the weapon. the incident was witnessed by Agya
Devi (P.W. 3) and P.W. 2, deceased's brother from the roof of the house. The
deceased died as a result of the injury. The prosecution was thereupon launched
against the appellant and the prosecution examined and amongst others P.W. 2
and P.W. 3.
P.W. 3
turned hostile, with the result the prosecution was left with only P.W. 2
(brother of the deceased) as eye witness. The trial court relied on the evidence
of P.W. 2 and also held that his evidence was corroborated by the P.Ws. 1 and 5
and recorded the conviction under section 302, I.P.C. and sentenced him to
imprisonment for life for causing the death of Champat Rai, the deceased, which
order was later affirmed by the Delhi High Court. Hence this appeal by the
appellant, after obtaining special leave. The main contention of the appellant
is that even if the prosecution case is to be accepted, an offence of murder is
not made out as the accused was entitled to the right of private defence; even
otherwise the accused having inflicted only one injury which proved fatal, the
offence would be one amounting to culpable homicide.
203
Dismissing the appeal, this Court,
HELD:
`Intention' is different from ``motive' or ignorance or ``negligence'. It is
the `knowledge' or `intention' with which that act is done that makes
difference, in arrival at a conclusion whether the offence is culpable homicide
or murder. [208-E] The language of Clause Thirdly of Section 300 speaks of
intention at two places and in each the sequence is to be established by the
prosecution before the can can fall in that Clause. The `intention' and
`knowledge' of the accused are subjective and invisible states of mind and
their existence has to be gathered from the circumstances, such as the weapon
used, the ferocity of attack, multiplicity of injuries and all other
surrounding circumstances. The framers of the Code designedly used the words
`intention' and `knowledge' and it is accepted that the knowledge of the
consequences which may result in doing an act is not the same thing as the
intention that such consequences should ensue. Firstly, when an act is done by
a person, it is presumed that he , must have been aware that certain specified
harmful consequences would or could follow. But the knowledge is bare awareness
and not the same thing as `intention' that such consequences should ensue. As
compared to `knowledge', `intention' requires something more than the mere
foresight of the consequences, namely the purposely doing of a thing to achieve
a particular end.[211H-212C] `Knowledge' as contrasted with `intention' signify
a state of mental realisation with the bare state of conscious awareness of
certain facts in which human mind remains supine or inactive. On the other
hand, `intention' is a conscious state in which mental faculties are aroused
into actively and summoned into action for the purpose of achieving a conceived
end. [213B-C] The circumstances would show that the accused intentionally
inflicted that injury though it may not be pre-mediated one. All the
circumstances would certainly indicate such a state of mind namely that he
aimed and inflicted that injury with a deadly weapon. In the absence of
evidence or reasonable explanation to show that the appellant did not intend to
stab in the chest with kirpan with that degree of force sufficient to penetrate
the heart, it would be perverse to conclude that he did not intend to inflict
that injury that he did. When once the ingredient `intention' is established
then the offence would be murder as the intended injury is found to be
sufficient in the ordinary course of nature to cause death. Therefore an
offence of murder is made out. [218D-E] 204 Tholan v. State of Tamil Nadu,
[1984] 2 SCC 133; Jagrup Singh v. State of Haryana, [1981] 3 SCC 616; Randhir
Singh v. State of Punjab [1981] 4 SCC 484; Kulwant Rai v. State of Punjab,
[1981] 4 SCC 245; Hari Ram v. State of Haryana, [1983] 1 SCC 193; Jagtar Singh
v. State of Punjab, [1983] 2 SCC 342; Ram Sunder v. State of U.P., Crl. Appeal
No. 555/83 decided on 24.10.1983; Chahat Khan v. State of Haryana [1972] 3 SCC
408; Chamru Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652; Willie
(William) Slaney v. State of Madhya Pradesh, [1955] 2 SCR 1140; Harjinder Singh
alias Jinda v. Delhi admn., [1968] 2 SCR 246; Laxman Kalu Nikalji v. State of Maharashtra, [1968] 3 SCR 685; Gurmail Singh
and Ors. v. State of Punjab, [1982] 2 SCC 185, referred to.
Virsa
Singh v. State of Punjab, [1958] SCR 1495, followed.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 50 of 1979.
From
the Judgment and Order dated 23.12.1977 of the Delhi High Court in Criminal
Appeal No. 162 of 1975.
R.K. Garg,
R.K. Jain, Ranjan Mahapatra and P.K. Jain for the Appellant.
V.C. Mahajan,
Ashok Bhan (NP) and Ms. A. Subhashini (NP) for the Respondent.
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. The appellant,
the sole accused in this case, has been convicted under Section 302 I.P.C. and
sentenced to imprisonment for life by the High Court of Delhi for causing the
murder of one Champat Rai, the deceased in the case.
The
prosecution case mainly rests on the evidence of P.W. 2, the sole eye-witness.
Learned counsel for the appellant contended that the uncorroborated testimony
of P.W. 2 is not wholly reliable and therefore the conviction cannot be
sustained. However, we may at this stage point out that the main submission has
been that even if the prosecution case is to be accepted, an offence of murder
is not made out as the accused was entitled to the right of private defence.
Even otherwise, according to the learned counsel, having regard to the fact
that as the appellant is alleged to have inflicted only a single injury which
proved fatal, the offence committed would be one amounting to culpable
homicide. To appreciate these submissions in a proper perspective, we 205 think
it necessary to state the facts of the case.
The
deceased was married to Agya Devi examined as P.W. 3. He lived with his wife in
a house in East Azad Nagar, Shahdra, Delhi. In the adjoining house were living his mother, P.W. 1 and his two
brothers P.Ws 2 and 5. The appellant was married to a cousin of Agya Devi, P.W.
3 and he used to visit the house of the deceased ostensibly as a relative. The
deceased, P.Ws 1,2 and 5 objected to the appellant's visit as they suspected
illicit relation between the appellant and Agya Devi P.W. 3, wife of the
deceased. On August 18,
1973 at about 11 P.M. when the deceased was not in the house , the
appellant came to visit Agya Devi. A few minutes later the deceased also came
home and he objected to the presence of the appellant. On this there was an
altercation and exchange of hot words. Then the appellant took out a kirpan (churra)
from his waist and stabbed the deceased in the chest. The deceased fell down
crying that the appellant has killed him. The appellant with the weapon ran out
of the house. The incident was witnessed by P.W. 2 from the roof where he had
retired for sleeping during the night. P.W. 2 and his another brother P.W. 5
chased the appellant but as the appellant who was armed with a lethal weapon
threatened them and made good his escape. On return they found the deceased
dead. P.W. 3 was sitting next to the body and was crying. The information was sent
to the police and P.W. 18, the Sub- Inspector, Kotwali Police Station came to
the scene of occurrence and recorded the statement of P.W. 2 on the basis of
which the case was registered against the appellant.
He
seized certain incriminating articles, held the inquest and sent the dead body
for post-mortem. He also recorded the statement of the material witness. One of
the recoveries made by him consisted of a sheath of the kirpan.
The
Doctor, P.W. 17, examined the dead body and conducted the post-mortem. He found
one incised stab wound on the left chest which proved fatal. The particulars of
the injury are:- (1) One incised stab wound, horizontally placed on the (L)
side of the chest 1" lateral to the left side and 2" below and medial
to the (L_) Nipple size 1" x 1/2" x with spindle shaped appearance
and with either margins pointed. The margins of the wound were smooth and the
collection of blood in the soft tissues.
(2)
One incised wound over right little finger at the base of second phalynx on dorcal
surface size 3/4" x 4/10" x bone deep. There is collection of blood
in the soft tissues and there was cut 206 mark on the base of second phalnyx
right little finger. The wound was bandaged with a piece of bandage and cotton
soiled in blood. The wound is not spindle shaped in appearance. The margins
were smooth. This injury was a simple one and not due to a separate blow.
The
Doctor opined the injury NO.1 was sufficient to cause death in the ordinary
course of nature. The cause of death was haomorrhage and shock due to injuries.
The accused was arrested on 28.8.73 and at his instance the kirpan was
recovered. After completion of the investigation, the charge-sheet was laid.
The accused pleaded not guilty and denied the recoveries.
The
prosecution examined P.W. 2, the brother of the deceased and P.W. 3 Agya Devi,
wife of the deceased. But P.W. 3 turned hostile. Consequently the prosecution
was left with the testimony of P.W. 2, the remaining eye- witness. Both the
courts below relied on the evidence of P.W. 2 and they also held that his
evidence was corroborated by that of P.Ws 1 and 5.
As
hereinbefore mentioned, the learned counsel for the appellant submitted that
the evidence of P.W. 2 on which the case entirely rests, cannot be accepted. We
have gone through his evidence carefully as well as that of P.Ws. 1 and 5. The
evidence of P.W. w does not suffer from any serious infirmity. At any rate
there is other corroborative evidence also. We see absolutely no reason to
disagree with the findings of the courts below regarding their evidence.
The
learned counsel, however, submitted that the accused must have acted in right
of self-defence. According to the learned counsel, P.W. 2 himself has deposed
that there was exchange of hot words between the appellant and the deceased
which would have resulted in a fight and the appellant having reasonably
apprehended danger to his life, inflicted the injury on the deceased in self-defence.
We see no basis for this submission. P.W. 2 has no doubt stated that there was
exchange of hot words between the appellant and the deceased but he did not
speak about any fight between the two. On the other hand his evidence shows
that when the deceased came and questioned the accused then there was exchange
of hot words. The accused immediately took out a kirpan (churra) from his waist
and stabbed the deceased. Both the courts below also have rightly rejected this
plea. Therefore we see absolutely no grounds to come to a different conclusion.
207
The next and rather the main submission is that the offence committed by the
appellant would only amount to culpable homicide inasmuch as he has inflicted
only one injury. In support of his submission, he relied on some of the
decisions of this Court. In Tholan v. State of Tamil Nadu, [1984] 2 SCC 133 the
accused who dealt a single knife below on the chest found to be sufficient to
cause death, was convicted under Section 304 Part II I.P.C., disagreeing with
the contention on behalf of the State that Clause III of Section 300 I.P.C.
would be attracted in such a case. In arriving at such a conclusion, this Court
took into consideration various surrounding circumstances namely that the
presence of the deceased at the scene of occurence was wholly accidental and
that the accused dealt only one blow.
It must
also be mentioned that the deceased, who was a stranger in that case, came out
of his house and cautioned the accused not to indulge in abusive language as
ladies were present in that area. The accused thereupon questioned him and when
both were remonstrating, he took out a knife from his waist and stabbed the
deceased on the right side of the chest. On these facts, this Court held:
"We
are satisfied that even if Exception I is not attracted, the requisite
intention cannot be attributed to the appellant. But in the circumstances
herein discussed he wielded a weapon like a knife and therefore he can be
attributed with the knowledge that he was likely to cause an injury which was
likely to cause death. In such a situation, he would be guilty of committing an
offence under Section 304 Part II of the Indian Penal Code." In support of
this view, reliance is placed on some earlier decision of this Court in Jagrup
Singh v. State of Haryana, [1981] 3 SCC 616; Randhir Singh v. State of Punjab,
[1981] 4 SCC 484; Kulwant Rai v. State of Punjab, [1981] 4 SCC 245; Hari Ram v.
State of Haryana, [1983] 1 SCC 193;
Jagtar
Singh v. State of Punjab, [1983] 2 SCC 342 and Ram Sunder v.
State of U.P., Criminal Appeal No. 555/83 decided
on 24.10.1983. The learned counsel submitted that the observations made in
these cases apply on all fours to the facts of this case. According to him,
there was an altercation and during the same the appellant suddenly whipped out
a kirpan and inflicted only one injury and it is therefore reasonable to infer
that he would not have intended to cause that particular injury and
consequently Clause Thirdly of Section 300 is not attracted. The submission
though put forward in a simple way leads to an important legal quandary
regarding the interpretation of Clause Thirdly Section 300 I.P.C. which is
considered be a 208 difficult and interact issue by the courts. However, Virsa
Singh v. State of Punjab, [1958] SCR 1495 is considered to
be an authoritative pronouncement in this regard. But perhaps inspired by some
of the decisions rendered thereafter both by the High Courts and the Supreme
Court there is a marked change in the trend of the contentions regarding the
scope of Clause Thirdly Section 300 I.P.C. It has reached a stage over
simplification and it is very often argued that whenever death is due to a
single blow the offence would be a culpable homicide and not murder.
Somewhat
to the same effect is the contention in the instant case.
In our
view it is fallacious to contend that when death is caused by a single blow
Clause Thirdly is not attracted and therefore it would not amount to murder.
The ingredient `Intention' in that Clauses is very important and that gives the
clue in a given case whether offence involved is murder or not. For the purpose
of considering the scope of Clause 3 it is not necessary for us to embark upon
an examination of the entire scope of Section 299 and 300 I.P.C. It is enough
if we start with Virsa Singh's case. Clause Thirdly of Section 300 I.P.C. reads
thus:
"3rdly-If
it is done 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-" We may note at this stage that `intention' is
different from `motive' or `ignorance' or `negligence'. It is the `knowledge'
or `intention' with which the act is done that makes difference, in arriving at
a conclusion whether the offence is culpable homicide or murder. Therefore, it
is necessary to know the meaning of these expressions as used in these
provisions. Before doing so we shall first refer to the to the ratio laid down
in Virsa Singh's case and the meaning given to the expression `intention'.
The
appellant Virsa Singh was sentenced to imprisonment for life under Section 302
I.P.C. There was only one injury on the deceased and that was attributed to
him. It was caused as a result of the spear thrust and the Doctor opined that
the injury was sufficient in the ordinary course of nature to cause death. The
Courts also found that the whole affair was sudden and occurred on a chance of
meeting.
Peritonit
is also supervened which hastened the death of the deceased. It was contended
that the prosecution has not proved that there was an intention to inflict a
bodily injury that was sufficient to cause death in 209 the ordinary course of
nature and therefore the offence was not one of murder. This contention was
rejected. After analysing the Clause Thirdly it is held the Court that the
prosecution must prove:
"First,
it must establish, quite objectively, that a bodily injury is present;
Secondly,
the nature of the injury must be proved; there 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." The
Court Further added thus:
"One
of these four elements is established by the prosecution (and, of course, the
burden is on the prosecution throughout) the offence is murder under Sec. 300,
3rdly. It does not matter that there was no intention even to cause an injury
of a kind that is sufficient to cause death in the ordinary course of nature
(not that there is any real distinction between the two). It does not even
matter that there is no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily injury actually found to be
present is proved, the rest of the enquiry is purely objective and the only
question is whether, as a matter of purely objective inference, the injury is
sufficient in the ordinary course of of nature to cause death. No one has a licence
to run around inflicting injuries that are sufficient to cause death in the
ordinary course of nature and claim that they are not guilty of murder. If they
inflict injuries of that kind, they must face the consequences; and they can
210 only escape if it can be shown, or reasonably deduced that the injury was
accidental or otherwise unintentional." (emphasis supplied) The learned
Judge also observe thus:
"In
the absence of evidence, or reasonable explanation, that the prisoner did not
intend to stab in the stomach with a degree of force sufficient to penetrate
that far into the body, or to indicate that his act was a regrettable accident
and that he intended otherwise, it would be perverse to conclude that he did
not intend to inflict the injury that he did. Once that intent is established
(and no other conclusion is reasonable possible in this case and in any case it
is a question of fact), the rest is a matter for objective determination from
the medical and other evidence about the nature and seriousness of the
injury." Adverting to the contention that there is only a single blow, it
is further held:
"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 intend 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, it neither here nor
there. The question, so far as the intention is concerned, is not whether he
intended to kill, or to inflicit 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. But whether the intention is there or not is one of fact and not
one of law. Whether the wound is serious or otherwise, and if serious, how
serious, is a totally separate and distinct question and has nothing to do with
the question whether the prisoner intended to inflict the injury in
question." 211 At another passage which has to be noted in this context
reads thus:
"It
is true that in a given case the enquiry may be linked up with the seriousness
of the injury. For example, if it can be proved, or if the totality of the
circumstances justify an inference, that the prisoner only intended a
superficial scratch and that by accident his victim stumbled and fell on the
sword or spear that was used, then of course the offence is not murder. But
that is not because the prisoner did not intended the injury that he intended
to inflict to be a serious as it turned out to be but because he did not intend
to inflict the injury in question at all. His intention in such a case would be
to inflict a totally different injury. The difference is not one of law but one
of fact; and whether the conclusion should be one way or the other is a matter
of proof, where necessary, by calling in aid all reasonable inferences of fact
in the absence of direct testimony. It is not one for guesswork and fanciful
conjecture.
Referring
to these observations, Divisional Bench of this Court in Jagrup Singh's case
observed thus:
"These
observations of Vivian Bose, J. have become locus classicus. The test laid down
in Virsa Singh's case for the applicability of clause Thirdly is now ingrained
in our legal system and has become part of the rule of law." The Division
Bench also further held that the decision in Virsa singh's case has throughout
been followed as laying down the guiding principles. In both these cases it is
clearly laid down that the prosecution must prove (1) that the body injury is
present, (2) that the injury is sufficient in the ordinary course of nature to
cause death, (3) that the accused intended to inflict that particular injury
that is to say it was not accidental or unintentional or that some other kind
of injury was intended. In other words the 3rd Clause consists of two parts.
The first part is that there was an intention to inflict the injury that is
found to be present and the second part that the said injury is sufficient to
cause death in the ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and circumstances that the
intention of the accused was to cause that particular injury. whereas the
second part whether it was sufficient to cause the death is an objective
enquiry and it is a matter of inference or deduction from the particulars of
the injury. The language of Clause Thirdly of Section 300 212 speaks of
intention at two places and in each the sequence is to be established by the
prosecution before the case can fall in that Clause. The `intention' and
`knowledge' of the accused are subjective and invisible state of mind and their
existence has to be gathered from the circumstances, such as the, weapon used,
the ferocity of attack, multiplicity of injuries and all other surrounding
circumstances. The framers of the code designedly used the words `intention'
and `knowledge' and it is accepted that the knowledge of the consequences which
may result in doing an act is not the samething as the intention that such
consequences should ensue. Firstly, when an act is done by a person, it is
presumed that he, must have been aware that certain specified harmful
consequences would or could follow. But that knowledge is bare awareness and
not the same thing as intention that such consequences should ensue. As
compared to `knowledge', `intention' requires something more than the mere
foresight of the consequences, namely the purposeful doing of a thing to
achieve a particular end.
Kenny
in "Outline of Criminal Law" (17th Edition at page 31) has observed:
"Intention:
To intend is to have in mind a fixed purpose to reach a desire objective; the
noun `intention' in the present connexion is used to denote the state of mind
of a man who not only forsees but also desires the possible consequences of his
conduct. Thus if one man throws another from a high tower or cuts off his head
it would seem plain that the both foresees the victim's death and also desires
it: the desire and the foresight will also be the same if a person knowingly
leaves a helpless invalid or infant without nourishment or other necessary
support until death supervenes. It will be noted that there cannot be intention
unless there is also foresight, since a man must decide to his own
satisfaction, and accordingly must foresee, that to which his express purpose
is directed.
Again,
a man cannot intend to do a thing unless he desires to do it. It may well be a
thing that he dislikes doing, but he dislikes still more the consequences of
his not doing it. That is to say he desires the lesser of two evils, and
therefore, has made up his mind to bring about that one." Russel on Crime
(12th Edition at Page 41) has observed:
213
"In the present analysis of the mental element in crime the word
`intention' is used to denote the mental attitude of a man who has resolved to
bring about a certain result if he can possibly do so.
He
shapes his line of conduct so as to achieve a particular end at which he
aims." it can thus be seen that the `knowledge' as contrasted with
`intention' signify a state of mental realisation with the bare state of
conscious awareness of certain facts in which human mind remains supine or
inactive. On the otherhand, `intention' is a conscious state in which mental
faculties are aroused into activity and summoned into action for the purpose of
achieving a conceived end. it means shaping of one's conduct so as to bring
about a certain event.
Therefore
in the case of `intention' mental faculties are projected in a set direction.
Intention need not necessarily involve premediation. Whether there is such an
intention or not is a question of fact. In Clause Thirdly the words
"intended to be inflicted" are singnificant.l;
As
noted already, when a person commits an act, he is presumed to expect the
natural consequences. But from the mere fact that the injury caused is
sufficient in the ordinary course of nature to cause death it does not
necessarily follow that the offender intended to cause the injury of that
nature. However, the presumption arises that he intended cause that particular
injury. In such a situation the Court has to ascertain whether the facts and
circumstances in the case are such as to rebut the presumption and such facts
and circumstances cannot be laid down in an abstract rule and they will vary
from case to case. However, as pointed out in Virsa Singh's case the weapon
used, the degree of force released in wielding it, the antecedent relation of
the parties, the manner in which the attack was made that is to say sudden or
premeditated, whether the injury was inflicted during a struggle or grappling,
the number of injuries inflicted and their nature and the part of the body
where the injury was inflicted are some of the relevant factors. These and
other factors which may arise in a case have to be considered and if on a
totality of these circumstances a doubt arises as to the nature of the offence,
the benefit has to go to the accused.
In
some cases, an explanation may be there by the accused like exercise of right
of private defence or the circumstances also may indicate the same. Likewise
there may be circumstances in some cases which attract the first exception. In
such cases different considerations arise and the Court has to decide whether
the accused is entitled to the benefit of the exception, though the prosecution
established that one or the other clauses of Section 300 I.P.C. is attracted.
In the present enquiry we need not advert to that aspect since we are concerned
only with scope of clause Thirdly of Section 300 I.P.C.
214
The decision in Virsa Singh's case has throughout been followed in a number of
cases by the High Courts as well as by the Supreme Court. Such decisions are
too numerous and it may not be necessary for us to refer to all those cases.
However,
it would be useful to refer to a few decisions which have a bearing to the
point in issue. In Chahat Khan v. State of Haryana, [1972] 3 SCC 408 the deceased was waylaid by the accused who were
armed with lathis. The accused had both gun and a lathi but he used only the lathi
and struck a blow on the head with sufficient force and the solitary below with
the lathi was found to be sufficient in the ordinary course of nature to cause
death and it was held that the case fell within clause Thirdly as there was
clear intention to cause such bodily injury which in the ordinary course of
nature was sufficient to cause death. In Chamru Budhwa v. State of Madhya
Pradesh, AIR 1954 SC 652 there was exchange of abuses between the two parties
armed with lathis and in the course of the fight, the accused struck one lathi
blow on the head of the deceased which causes a fracture of the skull resulting
in death, and it was held that he had given the blow with the knowledge that it
was likely to cause death. In Willie (Williams) Slaney v. State of Madhya
Pradesh, [1952] 2 SCR 1140 there was a sudden quarrel leading to an exchange of
abuses and in the heat of the moment a solitary blow with a hockey stick had
been given on the head. It was held that the offence amounted to culpable
homicide punishable under Section 304 Part II I.P.C. In Harjinder Singh (alias Jinda)
v. Delhi Admn., [1968] 2 SCR 246 the facts are that there was a sudden
commotion and when the deceased intervened in the fight, the accused took out a
knife and stabbed the deceased and the deceased was in crouching position
presumably to intervene when he received the blow. Though the injury was found
sufficient in the ordinary course of nature to cause death., he was convicted
for the offence of culpable homicide. The intention to cause that particular
injury was not present.
To the
same effect is the decision in Laxman Kalu Nikalji v. State of Maharashtra,
[1968] 3 SCR 685 where the accused lost his temper and took out a knife and
gave one blow during a sudden quarrel.
In all
these cases the approach has been to find out whether the ingredient namely the
intention to cause the particular injury was present or not and it is held that
circumstances like a sudden quarrel in a fight or when the deceased intervenes
in such a fight, would create a doubt about the ingredient of intention as it
cannot definitely be said in such circumstances that the accused aimed the blow
at a particular part of the body. When an accused inflicts a blow with a deadly
weapon the presumption is that he intended to inflict that injury but 215 there
may be circumstances like those, as mentioned above, which rebut such
presumption and throw a doubt about the application of clause Thirdly. Of
course much depends on the facts and circumstances of each case. Now let us
examine some of the cases relied upon the learned counsel for the appellant.
In Kulwant
Rai's case a Bench consisting of D.A. Desai and R.B. Misra, JJ. held in a hit
and run case that where it cannot be said that the accused intended to inflict
the very fatal injury, clause Thirdly is not attracted. That was a case were
only one blow was given with the dagger in the epigastrium area and the facts
would go to show that there was no pre-meditation, no prior enmity and a short
quarrel preceded the assault. However, we do not find any discussion about the
scope of clause Thirdly. Randhir Singh's case was decided by a Bench consisting
of D.A. Desai and Baharul Islam, JJ. In that case, a single head injury was
inflicted by a college student on the deceased with a weapon supplied by his
father and the deceased died after six days and there also an assault was preceded
by a quarrel between the father of the accused and the deceased. The Bench
observed that:
"Merely
because the blow landed on a particular spot on the body divorced from the
circumstances in which the blow was given it would be hazardous to say that the
accused intended to cause that particular injury. The weapon was not handy. He
did not possess one. Altercation took place between his father and the deceased
and he gave blow with - kassi. In our opinion in these circumstances it would
be difficult to say that the accused intended to cause that particular
injury." Before the same Bench, in Gurmail Singh and others v. State of Punjab, [1982] 3 SCC 185 this question
again came up for consideration. In that case, an indecent joke cut by the
accused with the wife of a P.W. led to a quarrel and the deceased who was
nowhere in the picture tried to intervene, two of the accused gave some blow on
him. Then Gurmail Singh, the appellant therein, gave a single blow with spear
on the chest which proved fatal. It was contended by the State that clause
Thirdly of Section 300 I.P.C was attracted.
it is
observed that:
"But
it was said that the case would be covered by Para 3 of Section 300 in that Gurmail
Singh intended to cause an injury and the injury intended to be inflicted was
proved to 216 be sufficient in the ordinary course of nature to cause death.
This argument is often raised for consideration by this Court and more often
reliance is placed on Virsa Singh v. State of Punjab,[1958] SCR 1495. We would have gone into the question in
detail but in Jagrup Singh v. State of Haryana [1981] 3 SCC 616, Sen. J. after
examining all the previous decisions on the subject, observed that in order to
bring the case within Para 3 of Section 300, I.P.C., 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. This view was further
affirmed in a decision rendered in Randhir Singh v. State of Punjab, [1981 4 SCC 484. We are of the
opinion that in the facts found by the High Court it could not be said that
accused 1 Gurmail singh intended to cause that particular bodily injury which
in fact was found to have been caused.
May
be, the injury inflicted may have been found to be a sufficient in the ordinary
course of nature to cause death. What ought to be found is that the injury
found to be present was the injury that was intended to be inflicted. It is
difficult to say that with confidence in the present case keeping in view the
facts found by the High Court that accused 1 Gurmail Singh intended to cause
the very injury which was found to be fatal." Therefore this decision also
affirms the view taken in Virsa Singh's case. Then came the decision in Jagtar
Singh's case rendered by a Bench consisting of D.A.Desai and Amarendra Nath Sen,
JJ. In that case a single knife blow was inflicted in the chest and it was
found to be sufficient in the ordinary course of nature to cause death. The
Bench held that clause Thirdly was not attracted in view of circumstances i.e.
there the accused was a young man and inflicted the injury on the spur of the
moment and some extent on deceased's provocation in a sudden chance quarrel and
on a trivial issue. The Bench observed that:
"The
cause of quarrel though trivial was just sudden and in this background the
appellant, a very young man gave one blow. He could not be imputed with the
intention to cause death or the intention to cause that particular injury which
proved fatal." In this case, there is no reference to Virsa Singh's case
but there is a 217 references to Jagrup Singh's case which decision, as noted
already, has followed the ratio in Virsa singh's case.
Then came
the decision in Tholan's case on which the counsel has heavily relied upon. In
that case also the appellant inflicted only a single knife blow on the chest of
the deceased sufficient to cause death but it was on the spur of the moment.
The Division Bench, consisting of D.A. Desai and R.B.Misra, JJ. took into the
consideration that the deceased had nothing to do with the chit organised by
one K.G. Rajan in respect of which there was a quarrel between the appellant
and the organisers of the chit and when the accused was abusing the organisers,
the deceased seemed to have told the accused not to misbehave in the presence
of the ladies and not to use vulgar and filthy language. The presence of the
deceased was wholly accidental and the appellant on the spur of the moment
inflicted the fatal injury on the chest. The Division Bench relying on the
earlier decision under similar circumstances convicted the accused under
Section 304 Part II. A reference is also made to the decision in Jagrup Singh's
case. Therefore in this case also, the ratio laid down in Virsa Singh's case is
presumably followed.
In all
these cases, injury by a single blow was found to be sufficient in the ordinary
course of nature to cause death. The supreme Court took into consideration the
circumstances such as sudden quarrel, grappling etc. as mentioned above only to
assess the state of mind namely whether the accused had the necessary intention
to cause that particular injury i.e. to say that he desired expressly that such
injury only should be the result. It is held in all these cases there was no
such intention to cause that particular injury as in those circumstances, the
accused could have been barely aware i.e only had knowledge of the
consequences. These circumstances under which the appellant happened to inflict
the injury it is felt or atleast a doubt arose that all his mental faculties
could not have been roused as to form an intention to achieve the particular
result. We may point out that we are not concerned with the intention to cause
death in which case it will be a murder simpliciter unless exception is
attracted. We are concerned under clause Thirdly with the intention be cause
that particular injury which is subjective inquiry and when and when once such
intention is established and if the intended injury is found objectively to be
sufficient in the ordinary course of nature to cause death, clause Tirdly is
attracted and it would be murder, unless one of the exceptions to Section 300
is attracted.
If on
the otherhand this ingredient of `intention' is not established or if a
reasonable doubt arises in this regard then only it would be reasonable to
infer that Clause Thirdly is not 218 attracted and that the accused must be
attributed knowledge that in inflicting the injury he was likely to cause death
in which case it will be culpable homicide punishable under Section 304 Part II
I.P.C.
Bearing
these principles in mind, if we examine the facts in the present case, clause
Thirdly of Section 300 I.P.C. is fully attracted. The appellant was having
illicit relation with Agya Devi, wife of the deceased and his visits to her
house were resented and objected. On the day of occurence, the accused visited
the house when the deceased was not there and he went there armed with a kirpan.
When the deceased came and objected to his presence there was only an
altercation and exchange of hot words, and not a fight. Thereupon he took out a
knife and stabbed on the chest of the deceased resulting instantaneous death of
the deceased. The above circumstances would show that the accused intentionally
inflicted that injury though it may not be pre-mediated one. All the above
circumstances would certainly indicate such a state of mind namely he aimed and
inflicted that injury with a deadly weapon. As observed in Virsa Singh's case
in the absence of evidence or reasonable explanation show that the appellant
did not intend to stab in the chest with a kirpan with that degree of force
sufficient to penetrate the heart, it would be perverse to conclude that he did
not intend to inflict that injury that he did. When once the ingredient
`intention' is established then the offence would be murder as the intended
injury is found to be sufficient in the ordinary course of nature to cause
death. Therefore an offence of murder is made out.
Accordingly
the appeal is dismissed.
Y. Lal
Appeal dismissed.
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