Padma Rao & Anr Vs. The State of A.P.Rep. by the Public Prosecutor  Insc 154 (19
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising out of SLP (Crl.) No. 5591 of 2006) Dr. ARIJIT PASAYAT, J.
Appellant along with 14 others was convicted for offences punishable under
Sections 148, 448 read with Section 149, Section 302 read with Section 149 and
Section 324 read with Section 149 of the Indian Penal Code, 1860 (in short the
The III Additional Sessions Judge, Karimnagar found all the accused persons
guilty of the charged offences. For the offence under Section 302 read with
Section 149 IPC each of the accused persons was sentenced to undergo
imprisonment for life and to pay a fine of Rs.500/- each with default stipulation.
Similarly, for the offences relatable to Sections 148, 448, 149 and 324 IPC
different sentences were imposed. In appeal, the High Court confirmed the
conviction and sentence as imposed by the Trial Court on the present appellants
and accused nos.
7 to 9, 12 and 13. The High Court directed acquittal of rest of the accused
persons of all charges.
The factual position in a nutshell is as follows :
is the wife, PW-2
is the father, PW-3 is the mother, PW-4 is the brother and PW-5 is the
sister-in-law of Pogula Jasan (hereinafter referred to as the 'deceased'). The
accused, deceased and the material witnesses are residents of Neerukulla
village. The deceased purchased an Auto and was plying the same between
Sulthanabad and Neerukulla. On 02.07.2003 at about 9.00 P.M., the deceased
returned to his house from Sulthanabad and informed PWs.1 to 3 that when he
requested A-1 and A-2 to travel in his Auto as per the serial number, they
refused to travel in his Auto and beat him.
On 03.07.2003 morning, PW-1 and the deceased went to the house of the
Sarpanch and told him about the incident.
The Sarpanch called A-1 and enquired from him as to why he had assaulted the
deceased. A-1 admitted his guilt in the presence of PWs. 9 and 10. On the same
day at about 6.00 P.M., A-l to A-16 came to the house of the deceased and
attacked him. A-1 beat the deceased with a stick. The deceased ran into the
house and bolted the door. In the meantime, when PW-2 intervened to rescue the
deceased, A-1 beat him with a stick. A-3 broke the doors and all the accused
entered the house and beat the deceased. Some of the accused were armed with
iron rods and axes. They beat the deceased indiscriminately. Then the deceased
ran out from the house.
The accused chased and beat him indiscriminately. Finally, the deceased fell
down near the Gram Panchayat office on receipt of the injuries. Later, the
deceased was taken in an Auto to the Government Hospital, Sulthanabad. On the
advice of the Doctor, the persons who carried the deceased to the hospital went
to the Police Station and gave Ex.P-1 report. On the basis of Ex.P-1, the
police registered a crime for the offences punishable under Sections 147, 148,
448, 307, 327 read with 149 of I.P.C. Thereafter, the deceased and PW-2, who
received injuries, were referred to the Government Hospital, Karimnagar. The
deceased, while undergoing treatment, succumbed to the injuries. The Inspector
of Police took up investigation, prepared the rough sketch, observed the scene
of offence, held inquest over the dead body of the deceased, seized M.Os.1 and
2 and later sent the dead body for postmortem examination. The accused were
arrested and weapons were recovered. After completion of the investigation, the
police laid the charge sheet. The accused denied the charges and claimed for
In order to further the prosecution version the prosecution examined 22
witnesses. On behalf of the accused persons no oral evidence was adduced, but
part of the statement of PW-3 recorded under Section 161 of the Code of
Criminal Procedure, 1973 (in short the 'Code') was marked as Ext.D-1. On
consideration of the material on record the Trial Court as noted above recorded
conviction. The convicted accused persons preferred appeals before the High
Court and by common judgment in four appeals the impugned judgment was passed.
In support of the appeal, learned counsel for the accused persons submitted
that the conviction is based primarily on the evidence of witnesses who were
related to the deceased.
Further the accusations even if accepted in toto do not make out the case
relatable to Section 302 IPC.
Learned counsel for the respondent-State on the other hand supported the
impugned judgment submitting that on analysis of evidence on record the Courts
below have come to the right conclusion.
In regard to the interestedness of the witnesses for furthering the
prosecution version, relationship is not a factor to affect the credibility of
a witness. It is more often than not that a relation would not conceal the
actual culprit and make allegations against an innocent person. Foundation has
to be laid if a plea of false implication is made. In such cases, the court has
to adopt a careful approach and analyse evidence to find out whether it is
cogent and credible.
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been
laid down as under:- "A witness is normally to be considered independent
unless he or she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily a close relation would be the last
to screen the real culprit and falsely implicate an innocent person. It is
true, when feelings run high and there is personal cause for enmity, that there
is a tendency to drag in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee
of truth. However, we are not attempting any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what
is so often put forward in cases before us as a general rule of prudence.
There is no such general rule. Each case must be limited to and be governed
by its own facts."
The above decision has since been followed in Guli Chand and Ors. v. State
of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras
(AIR 1957 SC 614) was also relied upon.
We may also observe that the ground that the witness being a close relative
and consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that
the testimony of the two eyewitnesses requires corroboration.
If the foundation for such an observation is based on the fact that the
witnesses are women and that the fate of seven men hangs on their testimony, we
know of no such rule.
If it is grounded on the reason that they are closely related to the
deceased we are unable to concur. This is a fallacy common to many criminal
cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar
v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it
unfortunately still persists, if not in the judgments of the Courts, at any
rate in the arguments of counsel."
Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court
observed: (p. 209-210 para 14):
"But it would, we think, be unreasonable to contend that evidence given
by witnesses should be discarded only on the ground that it is evidence of
partisan or interested witnesses.......The mechanical rejection of such
evidence on the sole ground that it is partisan would invariably lead to
failure of justice. No hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has to be cautious in dealing
with such evidence; but the plea that such evidence should be rejected because
it is partisan cannot be accepted as correct."
To the same effect is the decision in State of Punjab v.
Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC
76). Stress was laid by the accused-appellants on the non-acceptance of
evidence tendered by some witnesses to contend about desirability to throw out
entire prosecution case. In essence prayer is to apply the principle of
"falsus in uno falsus in omnibus" (false in one thing, false in everything).
This plea is clearly untenable. Even if major portion of evidence is found
to be deficient, in case residue is sufficient to prove guilt of an accused,
notwithstanding acquittal of number of other co-accused persons, his conviction
can be maintained. It is the duty of Court to separate grain from chaff. Where
chaff can be separated from grain, it would be open to the Court to convict an
accused notwithstanding the fact that evidence has been found to be deficient
to prove guilt of other accused persons. Falsity of particular material witness
or material particular would not ruin it from the beginning to end. The maxim
"falsus in uno falsus in omnibus" has no application in India and the
witnesses cannot be branded as liar. The maxim "falsus in uno falsus in
omnibus" has not received general acceptance nor has this maxim come to
occupy the status of rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases testimony may be disregarded,
and not that it must be disregarded. The doctrine merely involves the question
of weight of evidence which a Court may apply in a given set of circumstances,
but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali
v. The State of Uttar Pradesh (AIR 1957 SC 366).
The above position was elaborately discussed in Sucha Singh and Anr. v.
State of Punjab (2003 (6) JT SC 348), and Israr v. State of U.P. (2005 (9) SCC
616) In S. Sudershan Reddy v. State of A.P. (AIR 2006 SC 2716), it was
observed; Relationship is not a factor to affect credibility of a witness. It
is more often than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Foundation has to be laid if plea
of false implication is made. In such cases, the court has to adopt a careful
approach and analyse evidence to find out whether it is cogent and credible.
This brings us to the crucial question as to which was the appropriate
provision to be applied. In the scheme of IPC culpable homicide is the 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, 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.
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
Section 299 Section 300 A person commits Subject to certain exceptions
culpable homicide if the act by culpable homicide is murder if the the death is
caused is act by which the death is caused done - is done - INTENTION (a) with
the intention of causing (1) with the intention of causing death; or death; or
(b) with the intention (2) with the intention of causing of causing such such
bodily injury as the bodily injury as is offender knows to be likely to likely
to cause death; or 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 (4) with the knowledge that the
knowledge that act is so imminently the act is likely to dangerous that it must
in all cause death. probability cause death or such bodily injury as is likely
to cause death, and commits such act 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
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.
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
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 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 probability 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 Singh 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 offender.
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
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
The learned Judge explained the third ingredient in the following words (at
"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 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."
These observations of Vivian Bose, J. have become locus classicus. The test
laid down by Virsa Singh 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
Thus, according to the rule laid down in Virsa Singh case (supra) even if
the intention of the 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
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, that it may not be convenient to give a separate and clear cut
treatment to the matters involved in the second and third stages.
The position was illuminatingly highlighted by this Court in State of A.P.
v. Rayavarapu Punnayya (1976 (4) SCC 382 and Abdul Waheed Khan alias Waheed and
ors. v. State of A.P.
(2002 (7) SCC 175).
If the evidence on record is considered on the touchstone principles set out
above the inevitable conclusion is that the proper conviction would be Section
304 Part I IPC instead of Section 302 IPC. The conviction of the appellants is
accordingly altered from Section 302 read with Section 149 to Section 304 Part
I read with Section 149 IPC. Custodial sentence of 10 years would meet the ends
of justice. The findings of the guilt in respect of other offences and the
sentences imposed do not warrant interference. The sentence shall run
The appeal is allowed to the aforesaid extent.
Pages: 1 2