Tudu and Anr Vs. The State of Bihar (Now Jharkhand)
 Insc 925 (14
Arijit Pasayat & D.K. Jain
APPEAL NO. 1221 OF 2007 (Arising out of SLP (Crl.) No.5396 of 2006) Dr. ARIJIT
Challenge in this appeal is to the order passed by a Division Bench of the Jharkhand
High Court upholding conviction of the appellants for offence punishable under
Section 302 IPC read with Section 34 of the Indian Penal Code, 1860 (in short
Background facts according to the prosecution in a nutshell are as follows:
(PW-8) is the sister-in-law of Biti Murmu (hereinafter referred to as 'the
deceased'). The first appellant's son fell ill and the appellants/accused were
under the impression that since the deceased, Biti Murmu, is a witch, she has
caused a spell on the son of the accused and, therefore, they were nurturing a
grievance against the deceased. On the date of incident, when the villagers had
gone to the cremation ground to cremate the dead body of a villager, Jhora Hansda,
appellants Phulia Tudu and Malgo Soren, chased the deceased, Biti Murmu, and
she took asylum in the house of Bitia Soren (PW-8). The appellants entered the
house and caught hold of the deceased, Biti Murmu. Bitia Soren (PW-8) at that time,
was engaged in dehusking paddy. The first accused caught the hands of the
deceased and pulled her out and the deceased fell down. The first accused, Phulia
Tudu, assaulted her with lathi and when PW-8 attempted to intervene, she was
threatened with her life. The other accused was present there at that time and
after the occurrence, they ran away from the place. After the return of the
villagers including the husband of PW-8, information was passed on to them.
Thereafter, fardbeyan, Ext.3, was given by PW-8 at Raneshwar police station at 2.30 p.m., which was registered as a crime and Ext.5 is the
first information report and investigation was taken up by Bijendra Narain
on taking up the investigation, reached the scene of occurrence, prepared the
inquest report, Ext.5, and sent the dead body to the hospital with a
requisition to the Doctor to conduct autopsy. On completion of investigation,
charge- sheet was filed. As accused persons pleaded innocence trial was held.
trial Court believed the evidence of PW-8 and recorded conviction under Section
302 read with Section 34 IPC and sentenced each to undergo imprisonment for
the accused Kisto Kisku was acquitted.
Matter was carried in appeal before the High Court.
the High Court it was submitted that only accusation was that A2 held the hands
of the deceased while A1 inflicted a lathi blow. It is submitted that lathi
blow attributed to A1 could not have caused fatal injuries. In any event, only
one blow was given and, therefore, Section 302 has no application.
Learned counsel for the State on the other hand supported the judgment of the
High Court, which as noted above, dismissed the appeal filed before it.
crucial question is as to which was the appropriate provision to be applied. In
the scheme of the IPC culpable homicide is genus and 'murder' its specie. All
'murder' is 'culpable homicide' but not vice-versa. Speaking generally,
'culpable homicide' sans 'special characteristics of murder is culpable
homicide not amounting to murder'. For the purpose of fixing punishment,
proportionate to the gravity of the generic offence, the IPC practically
recognizes three degrees of culpable homicide. The first is, what may be called,
'culpable homicide of the first degree'. This is the gravest form of culpable
homicide, which is defined in Section 300 as 'murder'. The second may be termed
as 'culpable homicide of the second degree'. This is punishable under the first
part of Section 304. Then, there is 'culpable homicide of the third degree'.
This is the lowest type of culpable homicide and the punishment provided for it
is also the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second part of Section
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.
299 Section 300 A person commits culpable homicide if the act by which the
death is caused is done - Subject to certain exceptions culpable homicide is
murder if the act by which the death is caused is done –
the intention of causing death; or
the intention of causing death or
the intention of causing such bodily injury as is likely to cause death; or
the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused; or
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
the knowledge that the act is likely to cause death.
with the knowledge that 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 or incurring the risk of causing death or such injury as is
Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300.
The distinguishing feature of the mens rea requisite under clause (2) is the
knowledge possessed by the offender regarding the particular victim being in
such a peculiar condition or state of health that the internal harm caused to
him is likely to be fatal, notwithstanding the fact that such harm would not in
the ordinary way of nature be sufficient to cause death of a person in normal
health or condition. It is noteworthy that the 'intention to cause death' is
not an essential requirement of clause (2). Only the intention of causing the
bodily injury coupled with the offender's knowledge of the likelihood of such
injury causing the death of the particular victim, is sufficient to bring the
killing within the ambit of this clause. This aspect of clause (2) is borne out
by illustration (b) appended to Section 300.
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
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.
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.
ingredients of clause "Thirdly" of Section 300, IPC were brought out
by the illustrious Judge in his terse language as follows:
put it shortly, the prosecution must prove the following facts before it can
bring a case under Section 300, "thirdly".
it must establish, quite objectively, that a bodily injury is present.
the nature of the injury must be proved. These are purely objective
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.
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
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.
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
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
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.
Therefore, each of the appellants is convicted under Section 304 Part I read
with Section 34 IPC and not Section 302 IPC read with Section 34 IPC. Custodial
sentence of ten years would meet the ends of justice.
The appeal is allowed to the aforesaid extent.
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