Balkar Singh Vs.
State of Uttarakhand  INSC 655 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 206 of 2007 Balkar
Singh ....Appellant Versus State of Uttarakhand ....Respondent
Dr. ARIJIT PASAYAT, J
this appeal challenge is to the judgment of a Division Bench of the Uttarakhand
High Court upholding the conviction of the appellant as recorded by learned
First Additional Sessions Judge, Nainital under Section 302 of Indian Penal
Code, 1860 (in short the `IPC'). The allegation was that accused committed
murder of Ajeet Singh (hereinafter referred to as `D-1') and Bajan Singh
(hereafter referred to as `D-2') and attempted to commit murder of Roop Singh
for which he was convicted under Section 307 IPC and sentenced to 10 years RI.
version in a nutshell is as follows:
On 01.01.1983, at
about 5:00 P.M., D-1 along with Roop Singh (P.W. 2) (injured) and Harbhajan
Singh (P.W.1) informant, were going in a tractor to take flour from wheat flour
mill of one Ram Prasad in village Paigakhas, situated within the limits of P.S.
Kashipur (earlier part of District Nainital. At about 5:15 p.m., when they
reached and got down in village Paigakhas, accused/appellant Balkar Singh met
them and asked D-1 to have some wine with him, as it was a chilly day. On this,
D-1 curtly replied that he would not have wine, bought with the money of the
There was old enmity
between Balkar Singh (accused/appellant) and D-1 as earlier on a report lodged
against accused/appellant Balkar Singh by the family members of D-1, he had
been convicted but later on, acquitted by the appellate court. When Balkar
Singh reiterated his request to have drinks with him and not to develop further
the enmity between them, D-1 again firmly told that he would not have liquor
with Balkar Singh and he may do whatever he likes. This made Balkar Singh feel
insulted and he threatened D-1 that he will have to face the consequence of
this refusal. Then Balkar Singh went to his house to bring his gun and in the
meantime D-1 after taking flour from the wheat flour mill, proceeded for his
When D-1 and others,
in their tractor, reached near temple of goddess in village Paigakhas, accused
Balkar Singh armed with a gun, fired a shot at D-1. It was around 5:30 p.m. D-1
on seeing Balkar Singh, firing at him, drove the tractor a bit faster. Balkar
Singh, kept on firing shots, one after another and injured D-1, Bhajan Singh
and Roop Singh. D-2 along with Roop Singh (P.W. 2) and Harbhajan Singh (P.W.1),
in an attempt to save their lives, jumped from the tractor and took shelter
behind rubbish heap by the side of pathway in the village. D-1 died on the spot
in the tractor.
started assembling near the scene of occurrence and accused-appellant Balkar
Singh, by then left the place. Injured Roop Singh and D-2 were taken to Civil
Hospital. But D-2 succumbed to the injuries in the hospital. Harbhajan Singh
(PW-1) lodged oral First Information Report at police station, Kashipur, at
7:20 p.m. on the very day i.e. 01.01.1983, which was registered as crime No. 2
of 1983 under Section 302/307 I.P.C.
Balkar Singh. On the basis of the oral report, chick report (Ext. A-1) was prepared
and necessary entry in the general diary was made, extract of which is Ext.
A-23. Devendra Kumar Thapliyal (PW-8) Inspector Incharge of the police station-
Kashipur, took up the investigation of the case. Meanwhile, the injuries of
Roop Singh (P.W. 2) were recorded in the Civil Hospital at 7:45 p.m. on the
same day i.e. 01.01.1983. Inquest report (Ext. A-3) was prepared after dead
body of D-1 was taken into possession by the police on 02.01.1983, at 7:30 a.m.
and police form No. 33 (Ext. A-4), sketch of his dead body (Ext. A-5), police
form No. 13 (Ext. A6) and letter (Ext. A-7) to Chief Medical Officer for post
mortem examination, were prepared. After the death of D-2, his dead body was
also taken into possession by police on 02.01.1983, at about 12:30 p.m. and an
inquest report (Ext. A-15), police form No. 33 (Ext. A- 16), sketch of his dead
body (Ext. A-17), police form No. 13 (Ext. A-20) and letter (Ex.A-8) to Chief
Medical Officer, requesting for post mortem examination, were prepared.
Officer prepared the site plan and recorded the statements of the witnesses. He
also prepared the recovery memo of the turban lying at the place of occurrence.
After completion of investigation the Investigating Officer submitted charge
sheet. Since the accused persons pleaded innocence, trial was held.
Placing reliance on
the evidence of an injured witness PW-2 and the eye witnesses PWs 1 and 3 the
trial Court recorded the conviction and found the appellant guilty.
appeal the basic stand was that the case at hand is not covered by Section 302
IPC. The High Court did not accept the stand and dismissed the appeal. The
stand taken before the High Court was re-iterated in this appeal.
counsel for the State supported the judgment of the trial Court as affirmed by
the High Court.
is to be noted that the background as projected by the prosecution is that the
accused requested the deceased to have some wine with him as weather was very
cold. D-1 replied that he did not like to have wine with a person like the
accused. On this the accused pleaded that the family members of D-1 and D-2 had
got him punished and if he did not take wine with him the enmity would be
continued. On this D-2 told him that they did not have wine with people like
the accused and he can do whatever he wanted to do. On this the appellant went
inside the house and came back with a gun. The accused, deceased and the
witnesses were travelling in a tractor which was moving at a high speed. The
appellant did not direct first shot towards the deceased, he fired in the air
and thereafter indiscriminately fired shots.
basic question is whether Section 302 IPC has application.
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
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 caused is done- culpable homicide is murder 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 7 (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.
(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.
(b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of Section 300 can be
where the assailant causes death by a fist blow intentionally given knowing
that the victim is suffering from an enlarged liver, or enlarged spleen or
diseased heart and such blow is likely to cause death of that particular person
as a result of the rupture of the liver, or spleen or the failure of the heart,
as the case may be. If the assailant had no such knowledge about the disease or
special frailty of the victim, nor an intention to cause death or bodily injury
sufficient in the ordinary course of nature to cause death, the offence will
not be murder, even if the injury which caused the death, was intentionally
given. In clause (3) of Section 300, instead of the words `likely to cause
death' occurring in the corresponding clause (b) of Section 299, the words
"sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to cause death
and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real and if overlooked, may result in miscarriage
of justice. The difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting from the
intended bodily injury.
To put it more
broadly, it is the degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest degree. The word
`likely' in clause (b) of Section 299 conveys the sense of probable as
distinguished from a mere possibility. The words "bodily injury.......sufficient
in the ordinary course of nature to cause death" means that death will be
the "most probable" result of the injury, having regard to the
ordinary course of nature.
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
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 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."
14. 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."
observations of Vivian Bose, J. have become locus classicus.
The test laid down by
Virsa Singh's case (supra) for the applicability of clause "Thirdly"
is now ingrained in our legal system and has become part of the rule of law.
Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both
the following conditions are satisfied: i.e. (a) that the act which causes
death is done with the intention of causing death or is done with the intention
of causing a bodily injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It must be proved
that there was an intention to inflict that particular bodily injury which, in
the ordinary course of nature, was sufficient to cause death, viz., that the
injury found to be present was the injury that was intended to be inflicted.
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.
(c) of Section 299 and clause (4) of Section 300 both require knowledge of the
probability of the act causing death. It is not necessary for the purpose of
this case to dilate much on the distinction between these corresponding
clauses. It will be sufficient to say that clause (4) of Section 300 would be
applicable where the knowledge of the offender as to the probability of death
of a person or persons in general as distinguished from a particular person or
persons - being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender must be of the
highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as
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.
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), Augustine
Saldanha v. State of Karnataka (2003 (10) SCC 472) and Thangaiya v. State of
Tamil Nadu (2005 (9) SCC 650) and Laxmannath v. State of Chhatisgarh (SLP
(Crl.) No. 6403 of 2006)
the background facts are considered keeping in view the principles of law as
noted above, the inevitable conclusion is that the offence is not covered by
Section 302 IPC and the proper conviction would be under Section 304 Part I
IPC. Custodial sentence of 8 years would meet the ends of justice in the
peculiar facts of the case.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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