Kesar Singh & ANR Vs.
State of Haryana [2008] INSC 734 (29 April 2008)
S.B. Sinha & V.S. Sirpurkar
REPORTABLE CRIMINAL APPEAL NO. 754 OF 2008 (Arising out of SLP (Crl.)
No.1241 of 2007) S.B. Sinha, J.
1. Leave granted.
Fact
2. Hardev Singh was a resident of Derabassi. He was a teacher. He, along
with Karam Chand, came to village Budhanpur to meet his father on 24.4.1988.
There was a vacant land in front of their house which was in possession of Pala
Ram and others. It was a Shamlat land. They were digging foundation. Ujjagar
Singh, father of Hardev Singh, asked them to leave some passage for their house
whereupon Pala Ram exhorted that the old man should be taught a lesson. Ujjagar
Singh shouted for help.
Appellant and Karam Chand, on hearing his shouts came out. They saw Kesar
Singh giving a Kassi (Spade) blow from the reverse side on the head of Hardev
Singh's father. He fell down. He was taken to primary health centre. He was
referred to the General Hospital. However, on 30.4.1988, his condition having deteriorated,
he was referred to Medical Sciences and Research, Chandigarh for treatment. He
succumbed to his injuries on 1.5.1988.
Proceedings
3. Appellants were charged for commission of an offence under Section 302/34
of the Indian Penal Code. The learned Sessions Judge accepted the prosecution
case. He, however, opined that no case under Section 302 of the Indian Penal
Code was made out, stating :
"I, however, find force in the contention of learned defence counsel
that the case in hand does not fall within ambit of Section 302 of the Indian
Penal Code. It is admitted case of the prosecution that the occurrence was not
the result of pre- meditation. The accused were filling foundation on the
shamlat-street which was objected to by the deceased. There was a sudden fight
and heat of passion accused Kesar Singh gave kassi blow on the head of Ujjagar
Singh on the exhortation of Pala Ram accused. It was a single blow and that too
from the blunt side of the Kassi. The crime committed by the accused is culpable
homicide not amounting to murder as envisaged by Section 300 (Exception-4) IPC,
punishable under Section 304-I of the Indian Penal Code."
4. On an appeal having been preferred thereagainst, a learned Single Judge
of the High Court, while relying on the decision of this Court in Virsa Singh
v. State of Punjab [AIR 1958 SC 465] as also in Shankar Narayan Bhadolkar v.
State of Maharashtra [(2005) (9) SCC 71], opined :
"Applying the principles of law, as noticed hereinafter, I am of the
considered opinion, that the offence committed by the appellants does not fall
within the definition of Section 300 of the IPC, nor does it fall within the
definition of offence, punishable under Section 304II of the Indian Penal Code.
In my considered opinion, the learned trial Court rightly held that the nature
of the offence, falls within the definition of Section 304-I of the IPC Section
304 deals with situations, where culpable homicide does not amount to murder,
i.e.
does not fall within the definition of murder, as contained in Section 300
of the IPC. Section 304 is sub-divided into two parts. If an injury is
inflicted with the knowledge and intention that it is likely to cause death,
but with no intention to cause death the offence would fall within the
definition of Section 304-I, however, if there is no intention to cause such an
injury, but there is knowledge that such an injury can cause death, the offence
would fall within the definition of Section 304-II. Thus, is intention. If
intention to cause such an injury as is likely to cause death, is established,
the offence would fall under Part-I but where no such intention is established
and only knowledge that the injury is likely to cause death, it would fall
under Part-II."
It was, however, observed :
"However, the nature of the injury, the weapon of offence, the
intention and knowledge of the assailants, in my considered opinion, clearly
places the offence as one under Section 304-I of the IPC.
Appellant No.1 inflicted the injury with knowledge and intention that the
injury, if inflicted is likely to cause death, but with no intention to cause
death.
However, as from the facts and circumstances of the present case, and the
fact that it was a sudden fight, a single blow inflicted with the reverse side
of a Kassi, it cannot be stated that he had an intention to cause death, as
required to make out an offence under Section 300 of the IPC."
Contentions
5. Mr. Dinesh Verma, learned counsel appearing on behalf of the appellant,
would submit that the very fact that the fight was a sudden one and single blow
has been inflicted with the reverse side of a Kassi, the case would fall under
Section 304 Part-II of the Indian Penal Code (for short, 'the Code') and not
Part-I thereof.
6. Mr. Rajeev Gaur 'Naseem', learned counsel appearing on behalf of the
respondent, on the other hand, would contend that even in a situation of this
nature, Part-I of Section 304 would apply.
The Statute
7. Chapter XVI of the Code deals with offences affecting the human body.
Section 299 defines 'culpable homicide'. Section 300, on the other hand,
defines 'murder'. Several exceptions are curved out therefrom.
Exceptions specified therein are also subject to certain exceptions as
contained in the provisos appended thereto; one of them is when the offender
commits the murder whilst deprived of the power of self-control by grave and
sudden provocation causing the death of the deceased. The second exception
deals with exceeding the power in exercise in good faith or the right of
private defence of the person or property on the part of the accused.
Exception 3 applies to a public servant of aiding another public servant
with which we are not concerned.
Exception 4 reads as under :
"Exception 4.--Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a sudden
quarrel and without the offender having taken undue advantage or acted in a
cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the
provocation or commits the first assault."
We may now notice Section 304 of the Code. When an offence comes within the
four corners of Section 299 of the Code, culpable homicide would not amount to
murder.
Section 300, however, although defines what would amount to culpable
homicide amounting to murder, as indicated hereinbefore, contains several
exceptions.
Distinction
8. The distinction between the first part and the second part of Section 304
of the Indian Penal Code, therefore, must be considered having regard to the
provisions contained in Sections 299 and 300 of the Indian Penal Code.
Clause (a) of Section 299 corresponds to clause (1) of Section 300, clause
(b) of Section 299 corresponds with clauses (2) and (3) of Section 300 and
clause (c) of Section 299 corresponds with clause (4) of Section 300 of the
Code.
This can best be understood if Sections 299 and 300 of the Code are noticed
side by side :
"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 (a) With the intention of causing
death (1) With the intention of causing death (b) With the intention of causing
such bodily injury as is likely to cause death (2) With 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.
(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
of cause death.
(c) With the knowledge that. The act is likely to cause death (4) With the
knowledge that the act is so immediately dangerous that it must in all
probability cause death, or such bodily injury as is likely to cause death, and
there is no excuse for incurring the risk.
9. The distinguishing feature is the mens rea. What is pre-requisite in
terms of clause (2) of Section 300 is the knowledge possessed by the offender
in regard to the particular victim being in such a peculiar condition or state
of health that the intentional harm caused to him is likely to be fatal.
Intention to cause death is not an essential ingredient of clause (2). When
there is an intention of causing a bodily injury coupled with knowledge of the
offender as regards likelihood of such injury being sufficient to cause the
death of a particular victim would be sufficient to bring the offence within
the ambit of this clause.
10. For determination of the said question, it would be convenient if the
exceptions contained in Section 300 are taken into consideration as if the case
falls under the said exceptions, there would not be any question of
applicability of the main provision of Section 300 of the Indian Penal Code.
11. The distinction between culpable homicide amounting to murder and not
amounting to murder is well known. Culpable homicide is genus, murder is its
specie. The culpable homicide, excluding the special characteristics of murder,
would amount to culpable homicide not amounting to murder. The Code recognizes
three degrees of culpable homicide. When a culpable homicide is of the first
degree, it comes within the purview of the definition of Section 300 and it
will amount to murder.
The second degree which becomes punishable in the first part of Section 304
is culpable homicide of the second degree. Then there is culpable homicide of
third degree which is the least side of culpable homicide and the punishment
provided for is also the lowest among the punishments for the three grades. It
is punishable under the second part of Section 304.
12. The questions which are required to be posed are (1) Whether the bodily
injuries found on the deceased were intentionally inflicted by the accused; and
if so, (2) Whether they were sufficient to cause death in the ordinary course
of nature.
If both these elements are satisfied, the same would amount to murder.
However, when the court is beset with a question as to whether the offence is
murder or culpable homicide not amounting to murder, the fact involved must be
examined having regard to : (1) whether the accused has done an act which
caused the death of another; (2) if a causal connection is found between the
act of the deceased and the death, the relevant question would be whether the
act of the accused amounts to culpable homicide as defined in Section 299; and
(3) if the answer thereto again is found to be in affirmative, the question
would be whether in the facts of this case, Section 300 or any of the
exceptions contained therein would be attracted. In this case, it has been
found by both the courts that the offence committed by the accused does not
amount to culpable homicide amounting to murder. The difficulty, thus, arises
herein in applying thirdly of Section 300, vis-`-vis exception 4 thereto.
Precedents
13. We must begin with the decision of King v. Aung Nyun [191 IC 306 (FB)]
where it was observed "it does not follow that a case of culpable homicide
is murder because it does not fall within any of the exceptions of Section 300.
To render culpable homicide as murder, the case must come within the provisions
of clause (1) or (2) or (3) or (4) of Section 300."
Whereas Section 299 defines the offence of culpable homicide, Section 300
defines the circumstances in which the offence of culpable homicide will, in absence
of exceptions laid down therein, amount to murder.
14. Culpable homicide may be classified in three categories (1) in which
death is caused by the doing of an act with the intention of causing death; (2)
when it is committed by causing death with the intention of causing such bodily
injury as is likely to cause death; and (3) where the death is caused by an act
done with the knowledge that such act is likely to cause death.
A note of caution at this juncture must be stated. Knowledge and intention
should not be confused. Section 299 in defining first two categories does not
deal with the knowledge whereas it does in relation to the third category. It
would also be relevant to bear in mind the import of the terms "likely by
such act to cause death". Herein again lies a distinction as 'likely'
would mean probably and not possibly. When an intended injury is likely to
cause death, the same would mean an injury which is sufficient in the ordinary
course of nature to cause death which in turn would mean that death will be the
most probable result.
A. Virsa Singh Standard
15. The locus classicus operating in the field is Virsa Singh (supra). We
may notice the judgment at some details :
Facts : In Virsa Singh, the appellant therein 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 meeting. Peritonitis 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 the ordinary course of nature and therefore the offence was not
one of murder. This contention was rejected.
We may notice the findings under different heads :
-
What must the prosecution prove? 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 Standard Laid Down It was said
that the intention that the section requires must be related, not only to the
bodily injury inflicted, but also to the clause, "and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death."
This is a favourite argument in this kind of case but may not be entirely
correct. If there is an intention to inflict an injury that is sufficient to
cause death in the ordinary course of nature, then the intention is to kill and
in that event, the "thirdly" would be unnecessary because the act
would fall under the first part of the section, namely - "If the act by which
the death is caused is done with the intention of causing death."
In our opinion, the two clauses are disjunctive and separate. The first is
subjective to the offender:
"If it is done with the intention of causing bodily injury to any
person."
It must, of course, first be found that bodily injury was caused and the
nature of the injury must be established, that is to say, whether the injury is
on the leg or the arm or the stomach, how deep it penetrated, whether any vital
organs were cut and so forth. These are purely objective facts and leave no
room for inference or deduction : to that extent the enquiry is objective;
but when it comes to the question of intention, that is subjective to the
offender and it must be proved that he had an intention to cause the bodily injury
that is found to be present.
Once that is found, the enquiry shifts to the next clause - "and the
bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death."
The first part of this is descriptive of the earlier part of the section,
namely, the infliction of bodily injury with the intention to inflict it, that
is to say, if the circumstances justify an inference that a man's intention was
only to inflict a blow on the lower part of the leg, or some lesser blow, and
it can be shown that the blow landed in the region of the heart by accident,
then, though an injury to the heart is shown to be present, the intention to
inflict an injury in that region, or of that nature, is not proved. In that
case, the first part of the clause does not come into play. But once it is
proved that there was an intention to inflict the injury that is found to be
present, then the earlier part of the clause we are now examining - "and
the bodily injury intended to be inflicted" is merely descriptive.
All it means is that it is not enough to prove that the injury found to be
present is sufficient to cause death in the ordinary course of nature; it must
in addition be shown that the injury is of the kind that falls within the
earlier clause, namely, that the injury found to be present was the injury that
was intended to be inflicted. Whether it was sufficient to cause death in the
ordinary course of nature is a matter of inference or deduction from the proved
facts about the nature of the injury and has nothing to be with the question of
intention.
In considering whether the intention was to inflict the injury found to have
been inflicted, the enquiry necessarily proceeds on broad lines as, for
example, whether there was an intention to strike at a vital or a dangerous
part of the body, and whether with sufficient force to cause the kind of injury
found to have been inflicted. It is, of course, not necessary to inquire into
every last detail as, for instance, whether the accused intended to have the
bowels fall out, or whether he intended to penetrate the liver or the kidneys
or the heart. Otherwise, a man who has no knowledge of anatomy could never be
convicted, for, if he does not know that there is a heart or a kidney or
bowels, he cannot be said to have intended to injure them. Of course, that is
not the kind of enquiry. It is broad based and simple and based on commonsense
: the kind of enquiry that "an ordinary man" could readily appreciate
and understand.
To put it shortly, the prosecution must prove the following facts before it
can bring a case under Section 300, "3rdly":
First, it must establish, quite objectively, that a bodily injury is
present;
Secondly, the nature of the injury must be proved; These are purely
objective investigations.
Thirdly, it must be proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not accidental or
unintentional, or that some other kind of injury was 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.
Once these four elements are established by the prosecution (and,
indisputably, the burden is on the prosecution throughout) the offence is
murder under Section 300, "3rdly". It does not matter that there was
no intention to cause death. 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 is actually found to be 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 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 only escape if it can be shown, or reasonably deduced that the
injury was accidental or otherwise unintentional."
B. The Different Views Hence, the question of whether the injury is
sufficient in the ordinary course of nature to cause death is an objective
enquiry. The accused need not have knowledge as whether the injury he intended
to cause would have been sufficient in the ordinary course of nature to cause
death. This is the position the Court took in the Virsa Singh case.
Unfortunately, the proportions in Virsa Singh have not been rigidly followed
subsequently. For example, in State of Andhra Pradesh v.
Rayavarapu Punnayya and Anr, [(1976) 4 SCC 382], the enquiry became one of
whether the accused intended to cause the ultimate internal injury that led to
death i.e. the Court inferred, from the surrounding facts and circumstances in
that case that the accused had intended to cause the hemorrhage etc that
ultimately led to death.
This position is somewhat contrary to Vivien Bose, J's pronouncements in
Virsa Singh.
The following Para in Virsa Singh is illustrative :
"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, it 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. 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."
Another passage which is relevant for our purpose 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 intend the injury that he
intended to inflict to be as 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 guess-work and fanciful
conjecture."
The Jayaprakash Case brings the law back to the Virsa Singh position.
I. PRESUMPTION AS REGARDS INTENTION Let us place on record the different
approaches in the two decisions. In Virsa Singh:
"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 reasonably 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."
In Jayaprakash:
"In Clause Thirdly the words "intended to be inflicted" are
significant. 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 to cause that
particular injury."
II. EVIDENCE TO BE CONSIDERED In Jayaprakash:
"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 (sic)
vary from case to case. However, as pointed (sic) in Virsa Singh's case 1958
SCR 1495 the weapon used, (sic)ree of force released in wielding it, (sic)edent
relations of the parties, the (sic)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 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."
16. Shifting the inquiry to the next clause 'and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death',
it was held :
"In considering whether the intention was to inflict the injury found
to have been inflicted, the enquiry necessarily proceeds on broad lines as, for
example, whether there was an intention to strike at a vital or a dangerous
spot, and whether with sufficient force to cause the kind of injury found to
have been inflicted. It is, of course, not necessary to enquire into every last
detail as, for instance, whether the prisoner intended to have the bowels fall
out, or whether he intended to penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy could never be convict, for,
if he does not know that there is a heart or a kidney or bowels, he cannot be
said to have intended to injure them. Of course, that is not the kind of
enquiry. It is broad-based and simple and based on commonsense; the kind of
enquiry that 'twelve good men and true' could readily appreciate and
understand."
17. In determining the question even the manner in which the injury was inflicted
and his knowledge as to whether it would be a severe one or a serious one would
also be a relevant factor. (See also State of Andhra Pradesh v. Rayavarapu
Punnayya & Anr. [(1976) 4 SCC 382].
18. In a case where the death occurred after nine days, this Court opined
that the prosecution failed to objectively prove the injury sufficient to cause
death in the ordinary course of nature. [See Jayraj v. State of Tamil Nadu
[(1976) 2 SCC 788].
19. For the said purpose, the circumstances surrounding the incident would
also be relevant. In Patel Rasiklal Becharbhai & Ors. v. State of Gujarat
[1993 Supp.(1) SCC 217] and Gurdeep Singh v. Jaswant Singh &
Ors. [1992 Supp.(3) SCC 103], in a situation of this nature, this Court held
Part-II of Section 304 to be applicable.
Knowledge v. Intention
20. We must keep in mind the distinction between knowledge and intention.
Knowledge in the context of Section 299 would, inter alia, mean consciousness
or realization or understanding. The distinction between the terms 'knowledge'
and 'intention' again is a difference of degrees. An inference of knowledge
that it is likely to cause death must be arrived at keeping in view the fact
situation obtaining in each case. The accused must be aware of the consequences
of his act.
21. Knowledge denotes a bare state of conscious awareness of certain facts
in which the human mind might itself remain supine or inactive whereas
intention connotes a conscious state in which mental faculties are roused into
activity and summed up into action for the deliberate purpose of being directed
towards a particular and specific end which the human mind conceives and
perceives before itself.
This was discussed extensively in Jai Prakash v. State (Delhi
Administration) [(1991) 2 SCC 32], stating :
"We may note at this state 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...
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 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 "Outlines of Criminal Law" (17th Edition at page 31) has
observed:
Intention: To intend is to have in mind a fixed purpose to reach a desired
objective; the noun 'intention' in the present connection is used to denote the
state of mind of a man who not only foresees 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 he 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.
Russell on Crime (12th Edition at Page 41) has observed:
"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'
signifies 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 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
premeditation. Whether there is such an intention or not is a question of fact.
Law Applicable in this case
22. Keeping in view the aforementioned legal principles in mind, we may
notice the facts of the present case.
In the instant case, the reverse side of a kassi was used by the accused to
hit the deceased on his head, a vital part of the body. The force with which
these injuries were inflicted cannot be disputed either given the internal
injuries these led to death as would appear from the injury report as also post
mortem report which read as under :
"1. Lacerated wound 3cm x = cm x 1 cm present on the left frontal
region of the skull.
Margin of the injury was irregular and injury was about 3 inches above the
medical end of left eye brow. This injury was present over a contusion about 2
inches x 2 inches reddish blue in condition. Patient was referred to General
Hospital, Sector 16, Chandigarh for X-ray skull and observation.
2. Contusion 2" x 1" present over the upper right eye bluish in
colouration.
3. Complaints of pain over right shoulder.
Tenderness positive XXX XXX XXX 1) Black eye right with contusion all
around.
2) Stitched wound scalp right side 1 inch in size.
3) Fracture of the frontal bone right side. With extra dural and subdural
hemorrhage. But hole on the right temper of parietal area. Stomach was empty.
Rest of the organs were normal. In my opinion cause of death was shock and
hemorrhage due to head injury. Injury was anti mortem in nature and was
sufficient to cause death in the ordinary course of nature."
Further, the exhortation by the accused, just before he struck the deceased,
that he needed to teach the deceased a lesson, also shows that he intended to
hit him on the head.
Hence, looking at all these facts and circumstances, intention to cause the
bodily injury in question is proved.
Further, due to the inapplicability of Explanation 4, there is nothing on
facts to rebut this presumption of intention.
Hence, the first part of S.300 "Thirdly" is proved.
The land belongs to the accused. The title is not in dispute. They had a
right over the land. They could excavate the same. The quarrel started because
the deceased wanted them to leave some passage. Both the courts have held that
it was a sudden fight which does not appear to be wholly correct.
The word "fight" is used to convey something more than a verbal
quarrel. It postulates a bilateral transaction in which blows are exchanged. In
order to constitute a fight, it is necessary that blows should be exchanged
even if they all do not find their target. [Ratanlal and Dhirajlal, Vol 2, page
1364, Footnote 4] No material in this regard has been brought on record.
In Para 14 of the Learned Sessions Judge's judgment, it is explicitly stated
that the contention of the accused (that the deceased had an altercation with
the accused's labourers) was baseless. The High Court says that the accused
have not produced any evidence in support of their contention that there was an
altercation between the two groups.
Further, the contention of the prosecution (that when the deceased merely
asked the accused to leave free some passageway, and the accused exhorted that
the deceased must be taught a lesson and proceeded to hit him on the head with
the reverse-side of the kassi) has been accepted by the courts below. There
was, thus, no fight far less any sudden fight.
Provocation per se is not fight. Asking somebody to do something again may
not be a provocation. Expressing a desire that some passage may be left may not
be considered to be a demand.
Hence, in this case, there is nothing on facts to show that a "sudden
fight" and "heat of passion", as envisaged under Exception 4 to
S.300, had developed.
In Tholan v. State of Tamil Nadu [(1984) 2 SCC 133], the accused, who dealt
a single knife blow on the chest found to be sufficient to cause death, was
convicted under Section 304 Part II I.P.C., the Court 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, including the fact that
the accused dealt only one blow.
The case cited by the accused in Jai Prakash v. State (Delhi
Administration), [(1991) 2 SCC 32], where there was an altercation and exchange
of hot words between the accused and the deceased. Then, the appellant took out
a Kirpan (Churra) from his waist and stabbed the deceased in the chest. The
accused contended that since there was an altercation and during the same, he
suddenly whipped out a kirpan and inflicted only one injury, it was reasonable
to infer that he would not have intended to cause that particular injury, and
consequently, Clause Thirdly of Section 300 is not attracted.
This contention was overruled by the Court.
In Bhagwan Bahadure v. State of Maharashtra, [2007 (11) SCALE 519], this
Court opined :
"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."
Hence, the mere fact that single blow was administered doesn't preclude the
existence of intention.
23. Reliance has been placed by learned counsel for the State, to a decision
of this Court in State of Punjab v. Tejinder Singh & Anr. [AIR 1995 SC
2466]. There two persons inflicted Gandasa blows on the deceased. The
altercation had already taken place four days prior to the incident over the
boundary line of the plots of the parties. The accused persons came heavily
armed shouting that the deceased should not be spared at a point of time when
his wife had brought breakfast for him and he had gone to hand pump to bring
water in a pitcher. It was even in the aforementioned situation, this Court
held :
"In view of our above findings we have now to ascertain whether for
their such acts A-1 and A-2 are liable to be convicted under Section 302 read
with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the
deceased was assaulted both with the sharp edge and blunt edge of the gandasas
and the nature of injuries also so indicates. If really the appellants had
intended to commit murder, they would not have certainly used the blunt edge
when the task could have been expedited and assured with the sharp edge. Then
again we find that except one injury on the head, all other injuries were on
non-vital parts of the body. Post-mortem report further shows that even the
injury on the head was only muscle deep.
Taking these facts into consideration we are of the opinion that the offence
committed by the appellant is one under Section 304 (Part I), IPC and not under
Section 302, IPC."
24. It is, therefore, a case where Virsa Singh would be applicable. The
injury inflicted was a serious one, it by itself may not be decisive but is one
of the relevant factors in regard to the application of fourthly of section
300.
Application of the said provisions must be made keeping in mind the fact
situation obtaining and the legal principles noticed hereinbefore.
25. For the reasons aforementioned, we are of the opinion that the appellant
are guilty of commission of the offence under Section 304 Part-I and not
Section 304 Part-II thereof. The learned Sessions has imposed a sentence of
eight years on the appellant and five years Rigorous Imprisonment on appellant
No.2. We, however, reduce the same, keeping in view the peculiar facts and
circumstances of this case, to five years and three years respectively.
26. Appeal is allowed to the above extent.
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