Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 599 OF 2009
(Arising out of S.L.P. (Crl.) No.7844 of 2007)
Pappu @ Hari Om ..Appellant
versus
State of Madhya Pradesh ..Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of
the Madhya Pradesh High Court, Jabalpur Bench, which affirmed the
conviction of the appellant for the offences punishable under Sections 302
of the Indian Penal Code, 1860 (in short the ‘IPC’). He was sentenced to
undergo imprisonment for life and to pay a fine of Rs.500/- with default
stipulation. Accused Bal Kishan was convicted for offence punishable under
Section 302 read with Section 34 IPC. The convictions were recorded by
learned Additional Sessions Judge, Gohad, Bhind, M.P. in Sessions Case
No.11/95. The conviction as recorded by the Trial Court was assailed by
two separate appeals. As accused-appellant Bal Kishan died during the
pendency of the appeal, the same stood abated.
3. Prosecution version in a nutshell is as follows:
On 2.11.1994 at about 9.30 p.m. Ram Babu (PW-1), Jagdish (PW-
12), Sanjeev Kumar (PW-14) and Ramesh (hereinafter referred as
‘deceased’ were playing cards near the house of Kishanlal under an electric
pole. The appellant Pappu @ Hari Om alongwith co-accused Bal Kishan
came there and asked the persons who were playing cards to permit them to
play with them. Ramesh objected to it and this gave rise to quarrel between
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Ramesh and the accused Pappu @ Hari Ram & Bal Kishan. Both Balkishan
and Pappu @ Hari Om went away after abusing Ramesh. After sometime,
they returned back from the lane of Rahim Khan Ki Gali. Papu @ Hari Om
had a 12 bore gun in his hand. Both accused abused Ramesh and Pappu @
Hari Ram fired gun shots, which caused injuries on the right shoulder of
Ramesh and he fell down. Bablu (PW-2) and other persons took him to the
hospital on a handcart, where Ramesh was declared dead. The report of this
incident was lodged by Rambabu (PW-1), which is marked as Ex.P-1. On
the basis of this report, Crime No.261/94 was registered against the accused.
4. Before the High Court the basic stand was that the independent
witnesses did not support the prosecution version and it was only the
evidence of PW-14 who supported the prosecution version. Additionally, it
was submitted that the case at hand is not one which is covered by Section
302 IPC. The High Court did not find any substance in the aforesaid plea
and dismissed the appeal.
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5. Learned counsel for the appellant reiterated the plea taken before the
High before this Court. Learned counsel for the respondent-State
supported the judgment.
6. Coming to the plea relating to acceptability of evidence, PW-10 who
reached the spot after hearing the sound of firing stated that when he
reached the spot he found Ramesh was lying in an injured condition and
was told by the deceased that the accused persons had fired. Since there
was wound on the chest of the deceased he was taken to the hospital. In his
evidence Sanjeev Kumar (PW-14) stated that in the night of occurrence at
about 9:30 p.m. which was Diwali night he was playing cards with four
others, Balkishan and the present appellant came there. There was
exchange of hot words between the accused with the deceased and the
appellant fired the shot and caused injuries on the chest of the deceased who
died while being taken to the hospital. There is no reason to discard the
prosecution version.
7. This brings us to the crucial question 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
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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.
8. 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
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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
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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.
9. Clause (b) of Section 299 corresponds with clauses (2) and (3) of
Section 300. The distinguishing feature of the mens rea requisite under
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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.
10. 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
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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”
mean that death will be the “most probable” result of the injury, having
regard to the ordinary course of nature.
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11. 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.
12. 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.
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13. 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 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.
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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
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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.”
15. 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 be inflicted.
16. Thus, according to the rule laid down in Virsa Singh’s case (supra),
even if the intention of accused was limited to the infliction of a bodily
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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.
17. 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
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 aforesaid.
18. 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
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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.
19. 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), Augustine Saldanha v. State of Karnataka (2003 (10)
SCC 472), Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650) and
Sunder Lal v. State of Rajasthan (2007 (10) SCC 371).
20. Considering the part of the body where the bullet fired hit the
deceased, in our considered opinion the appropriate conviction would be
under Section 304 Part II IPC. Custodial sentence of 8 years would meet the
ends of justice. It appears from the record that the appellant has suffered
custody of more than that period. He shall be released forthwith unless
required to be custody in any other case.
……..……...................................J.
(Dr. ARIJIT PASAYAT)
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……..……....................................J.
(D.K. JAIN)
…………..…
….............................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
March 31, 2009
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