Thayarammal Vs. Kanakammal & Ors  Insc 742 (8 December 2004)
Arijit Pasayat & S.H. Kapadia(Arising Out of S.L.P. (Crl.) No. 5080 of 2003 ARIJIT PASAYAT, J.
Appellant calls in question legality of the judgment rendered by a Division
Bench of the Madras High Court confirming his conviction for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short 'IPC'), and sentence
of imprisonment for life as awarded by the learned Sessions Judge, Kanyakumari.
Background facts as unfolded during trial by the prosecution are essentially
One Selvamani Nadar (hereinafter referred to as the 'deceased') was having
industry and he employed a number of girls. The accused used to make fun of the
girls/workers outside the factory and this was objected to by the deceased
several times. On that score, there had been enmity between the deceased and
At about 8.30 p.m. on 1.5.1990, PW-1, PW-2 and one Murugesan were standing
in front of Bensam Ground, south of Kulachal-Nagercoil Mail Road. The accused
was sitting on the eastern side of a culvert. There was a tube light burning
and hence there was enough light at that place. At that time, the deceased, who
came in a bicycle proceeding from east to west, took a turn towards south. The
accused rushed to the deceased saying "you die, old man" and hit him
with a stick (M.O.1) on his head. The deceased sustained injuries and there was
profuse bleeding. PW-1, PW-2 and Murgesan immediately went near him and when
the accused saw them coming near ran towards west, leaving the weapon viz.,
M.O.1 stick. Thereafter, PW-1, PW-2, Murugesan and the wife of the deceased
took the deceased to the Government Hospital at Kulachal.
After giving first aid to the deceased, the doctors in the said hospital
advised to take the deceased to Nagercoil for further treatment. The
aforementioned persons thereafter took the deceased to Nagercoil and at the Government
Hospital, Kottar, the deceased was treated by Doctor Rani Fnoch (PW-6).
The doctor found several injuries. PW-1 narrated the incident to the Head
Constable (PW-10) at the police station who recorded the first information
report (Ex.P-11). Same was dispatched to the Court of Judicial Magistrate.
Assistant Surgeon, Government Hospital (PW-7) treated the deceased who breathed
his last at about 1.25 a.m. on 2.5.1990. On receiving information about the
death the case which was originally registered under Sections 307, 323 and 341
IPC was registered under Section 302 IPC, and necessary information was sent to
the Court of Judicial Magistrate. On postmortem 6 injuries were noticed, out of
which 3 were external and the rest were internal.
Injuries 1 and 2 as noticed were abrasions but the fatal injury i.e.
injury No.3 was stated to be 4" linear oblique sutured wound over the
right parietal scalp. The doctor opined that the injury was sufficient in
ordinary course of nature to cause death. On 4.5.1990 the accused was arrested
and after completion of investigation the charge sheet was placed. The accused
pleaded innocence. The Trial Court found that the evidence of eye witnesses PWs.
1, 2 and 3 were cogent and credible.
The accused used to tease girls working in the factory of the deceased.
When the deceased objected to the same, there was some misunderstanding and
at the time of occurrence when the deceased was coming by bicycle, the accused
rushed towards him and attacked him; resulting the fatal injury. When the eye
witnesses rushed to help the deceased, the accused ran away. Placing reliance on
the evidence and considering the entire material on record the trial Court
found the accused guilty and convicted as aforesaid. An appeal was preferred
before the High Court questioning the conviction and sentence. Before the High
Court, it was urged that PWs. 1 and 2 were related to the deceased, and PW-3
was a chance witness and no credence should be put on their evidence. The High
Court did not accept the plea and finding the analysis of evidence by the trial
Court to be in order, upheld the conviction and sentence.
In support of the appeal, learned counsel for the appellant submitted that
the evidence of PW-3 who was treated as an independent witness was that a
chance witness and his evidence should not have been relied upon. It is further
submitted that even if the prosecution version is accepted in toto no case for
application of Section 302 IPC has been made out. Only one blow with a small
stick was given.
Per contra, learned counsel for the respondent-State supported the judgment
of the Courts below and submitted that the judgments are well reasoned and no
interference is called for.
Coming to the plea of the accused that PW-3 was 'chance witness' who has not
explained how he happened to be at the alleged place of occurrence, it has to
be noted that the said witness was an independent witness. There was not even a
suggestion to the witness that he had any animosity towards the accused. In a
murder trial by describing the independent witnesses as 'chance witnesses' it
cannot be implied thereby that their evidence is suspicious and their presence
at the scene doubtful. Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in a dwelling
house, the inmates of the house are natural witnesses. If murder is committed
in a street, only passersby will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the
ground that they are mere 'chance witnesses'. The expression 'chance witness'
is borrowed from countries where every man's home is considered his castle and
everyone must have an explanation for his presence elsewhere or in another
man's castle. It is quite unsuitable an expression in a country where people
are less formal and more casual, at any rate in the matter explaining their
presence. Therefore, there is no substance in the plea that PW-3's evidence
which is clear and cogent is to be discarded.
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
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 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.
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
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.
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.
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
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
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." 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." These 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.
Thus, 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.
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 aforesaid.
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.
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), and
Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472).
Keeping the aforesaid legal principles in view, the factual position is to
be examined. It cannot be said as a rule of universal application that whenever
one blow is given Section 302 IPC is ruled out. It would depend upon the facts
of each case. The weapon used, size of the weapon, place where the assault took
place, background facts leading to the assault, part of the body where the blow
was given are some of the factors to be considered. In the instant case
admittedly one blow was given with a small stick, and the place where the
assault took place was dimly lit. Inevitable conclusion is that the case is
covered by Section 304 Part I IPC and not Section 302 IPC. The conviction is
accordingly altered. Custodial sentence of 10 years would meet the ends of
The appeal is allowed to the aforesaid extent.