Nand Vs. State of Haryana 
Insc 568 (3 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CRIMINAL APPEAL NO. 595 OF 2008 (Arising out of SLP (Crl.)
No.4325 of 2007) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench
of the Punjab and Haryana High Court upholding the conviction of the appellant
for offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short 'IPC') in terms of the judgment dated 9/10.10.1997 passed by the
Additional Sessions Judge, Hissar.
3. A synoptical resume of the prosecution case is as under:
The prosecution machinery was set into motion at the instance of Shankar -
PW 5 who had four brothers. Chhajju Ram (hereinafter referred to as the
'Deceased') was younger to PW 5- Shankar and they had a joint khewat in the
revenue estate of village Sirdhan. On 9.9.1993 the said Shankar and his brother
Nain Sukh and deceased Chhajju Ram went to their fields known as Theriwala for
irrigating the land. Amar Singh (who faced trial and was acquitted) and Daya
Nand (appellant herein) were already irrigating their fields. Shankar and
others were to take turn of irrigation at 8.00 A.M. from the accused. At 8.00 A.M. deceased Chhajju Ram diverted the irrigation water to his field. Accused Daya
Nand objected that his turn of water had not yet started. Chhajju Ram retorted
that their turn started from 8.00 A.M. onwards. An altercation took place
between Shankar and the deceased on one side and the accused on the other.
Accused threatened that they will see them and both of them left towards the
Shankar and others also went to supervise the flow of irrigation water
through the water courses. In the meantime, both the accused came from the side
of village Sirdhan.
Accused Daya Nand was armed with a gun. Accused Amar Singh exhorted his son
accused -Daya Nand to fire a shot.
Accused Daya Nand then fired a shot from his gun towards Chhajju Ram who
took a turn but was hit on the right side of the waist and fell down. Blood
started oozing out from the fire shot injury. Nain Sukh (PW-6) also reached
there at the Naka and witnessed the occurrence apart from Shankar. Thereafter,
accused fled away towards the village along with the gun.
Chhajju Ram was admitted to Civil Hospital, Fatehabad by his brother Shanker
and Nain Sukh, where he was declared dead by the doctor. Ruqa Ex. PG was sent
by Dr. Jagdish Chaudhry to the Station House Officer, Police Station Fatehabad.
A wireless message Ex. PK was sent by the said Police Station to Police Station
Bhattu. Ram Kumar, Assistant Sub inspector along with some constables reached
Civil Hospital Fatehabad and recorded the statement of Shanker in Civil
Hospital, Fatehabad. That statement Ex. PG/1 was sent to the Police Station and
on its basis, FIR was recorded by Satbir Singh MHC, copy of which is Ex. PG/3.
Inquest proceedings were conducted and report Ex. PF/1 was prepared by Ram
Kumar Assistant Sub Inspector in the presence of Devi Lal and Shanker Lal PWs.
He moved an application Ex. PF and post mortem examination was conducted vide
report Ex. PF/2 by Dr. S.P. Mimani. Multiple wounds of small sizes were found
and eleven pellets were recovered from the abdomen of the deceased. The pellets
were sealed in a vial. The clothes of the deceased were removed and sealed into
a parcel. The cause of death was due to shock and haemorrhage as a result of
fire arm injuries which were ante mortem in nature and sufficient to cause
death in the ordinary course of nature vide post mortem report Ex. PF/2.
Ram Kumar, Assistant Sub Inspector along with Ram Kumar Constable then went
to village Sirdhan. He inspected the spot in the presence of Nain Sukh, Ram
Sarup, Sarpanch and Brij Lal, Chowkidar. Blood stained earth was lifted, made
into a sealed parcel and taken into possession vide recovery memo Ex. PH. One
empty cartridge of 12 bore was found lying which was also lifted, made into a
sealed parcel and taken into possession vide memo Ex. PJ. Rough site plan, Ex.
PL, was prepared and statements of other witnesses were recorded.
Accused Daya Nand produced a double barrel gun, Ex. P-8, licence, Ex. P-9,
and two live cartridges. Sketch map, Ex. PP of the gun was prepared. The gun
was placed in a sealed parcel. The licence and the two live cartridges were
also sealed in parcel and taken into possession vide memo Ex. PP/1. The case
property was sent for Chemical Examination and for report of the Ballistic
expert of Forensic Science Laboratory, Haryana, Madhuban. Vide report, Ex. PO,
the double barrel gun, Ex. P8, was found in working order, the empty cartridge
hereinafter referred to as the crime cartridge, which was lifted from the spot,
Ex. P6, was opined to have been fired from the said gun. The pellets recovered
from the dead body were opined to be pellets as are usually loaded in shot gun
cartridges, including 12 bore cartridge. As per reports, Ex.
PO/1 and Ex. P0/2, human blood was found in blood stained earth and on
shirt, Ex. P-1, Banian, Ex. P-2 and underwear Ex. P-3 of the accused. After
completion of investigation, accused was sent up for trial.
Charge was framed against accused Daya Nand under Section 302 IPC and 27 of
the Arms Act,
1959. Charge was framed against accused Amar Singh under Section 302 read
with Section 34 IPC.
4. In order to establish the accusations the prosecution examined 10
witnesses and the report of the Forensic Science Laboratory, Haryana, Madhuban
5. Accused persons during their examination under Section 313 of the Code of
Criminal Procedure, 1973 (in short 'Cr.P.C.') pleaded innocence and false
implication. The Trial Court relied on the evidence of eye witnesses Shankar
(PW5) and Nain Sukh (PW6). It found the prosecution evidence cogent and credible
and recorded conviction of the appellant.
But so far as accused Amar Singh is concerned, it was held that the evidence
was not sufficient to fasten guilt on him.
6. In appeal, it was submitted that the evidence of Shankar (PW5) and Nain
Sukh (PW6) should not have been relied upon.
It was further submitted that a single shot that too on the hip cannot
attract application of Section 302 IPC. Prosecution with reference to the
evidence of Shankar (PW5) and Nain Sukh (PW6) submitted that the evidence was clear
and cogent and, therefore, the accused persons were to be convicted. The High
Court, as noted above, dismissed the appeal.
7. Basic challenge in this appeal is to the conviction under Section 302
8. It was contended, as was done before the Trial Court and the High Court,
that Section 302 IPC has no application.
9. Learned counsel for the State, on the other hand supported the impugned
10. The 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 304.
11. 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.
12. 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.
13. 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
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 to cause death" 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
result of the injury, having regard to the ordinary course of nature.
14. 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.
15. 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.
16. 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
17. 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."
18. 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
19. 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 not be murder. Illustration (c) appended to Section 300 clearly brings out this point.
20. 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
21. 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.
22. 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 (2002 (7) SCC 175), Augustine Saldanha v. State
of Karnataka (2003 (10) SCC 472), Thangiya v. State of T.N. (2005 (9) SCC 650)
and in Rajinder v. State of Haryana (2006 (5) SCC 425).
23. Considering the evidence on record in the background of the principles
of law, the inevitable conclusion is that the appropriate conviction would be
under Section 304 Part II IPC. The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of nearly 8= years. The
sentence is restricted, therefore, to the period already undergone. The appeal
is allowed to that extent. The accused person be set at liberty forthwith
unless required in custody in any other case.