Full Judgment Text
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PETITIONER:
VIRSA SINGH.
Vs.
RESPONDENT:
THE STATE OF PUNJAB
DATE OF JUDGMENT:
11/03/1958
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
IMAM, SYED JAFFER
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 465 1958 SCR 1495
ACT:
Criminal Trial--Culpable homicide amounting to murder--
Prosecution to Prove-Presence and Nature of Injury
-Intention to cause that Particular Injury, which was not
accidental or unintentional and was sufficient to cause
death in the ordinary (course of nature--Indian Penal Code
(Act XLII of 1860), s. 300, 3rdly.
HEADNOTE:
The accused thrust a spear into the abdomen of ,he deceased.
This injury caused his death. In the opinion of the doctor
the injury was sufficient to cause death in the ordinary
course of nature. It was found by the Sessions judge that
the accused intended to cause grievous hurt only. In his
opinion however the third clause Of S. 300 Indian Penal Code
applied. He accordingly convicted and sentenced the accused
under S. 302 India, Penal Code. The High Court upheld the
conviction, It was argued that the third clause Of s. 300
Indian Penal Code did not apply as it was not proved that
the accused intended to inflict a
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bodily injury that was sufficient to cause death in the
ordinary course of nature as s. 300 Indian Penal Code third
clause states, " If it is done 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
Held, that the prosecution must prove the following before
it can bring a case under s. 300 Indian Penal Code third
clause.
(1) It must establish, quite objectively, that a bodily
injury is present.
(2) The nature of the injury must be proved; these are
purely objective investigations.
(3) 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.
(4) 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.
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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.
The third clause of S. 300 Indian Penal Code consists of two
parts. Under the first part it must be proved that there
was an intention to inflict the injury that is found to be
present and under the second part it must be proved that the
injury was sufficient in the ordinary course of nature to
cause death. The words " and the bodily injury intended to
be inflicted " are merely descriptive. All this 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
found to be present was the injury 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 do with the question of intention.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 90 of
1957.
Appeal by special leave from the judgment and order dated
November 21, 1956, of the Punjab High Court in Criminal
Appeal No. 326 of 1956 arising out of the judgment and order
dated June 26, 1956, of the Court of the Sessions Judge at
Ferozepore in Sessions Case No. 8 of 1956.
Jai Gopal Sethi and R. L. Kohli, for the appellant. N. S.
Bindra and T. M. Sen, for the respondent.
1958. March 11. The Judgment of the Court was delivered
by
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BOSE J.-The appellant Virsa Singh has been sentenced to
imprisonment for life under s. 302 of the Indian Penal Code
for the murder of one Khem Singh. He was granted special
leave to appeal by this Court but the leave is limited to
" the question that on the finding accepted by the Punjab
High Court what offence is made out as having been committed
by the petitioner."
The appellant was tried with five others under sss. 302/49,
324/149 and 323/149 Indian Penal Code. He was also charged
individually under s. 302.
The other, were acquitted of the murder charge by the first
Court but were convicted under ss. 326, 324 and 323 read
with s. 149, Indian Penal Code. On appeal to the High Court
they were all acquitted.
The appellant was convicted by the first Court under s. 302
and his conviction and sentence were upheld by the High
Court.
There was only one injury on Khem Singh and both Courts are
agreed that the appellant caused it. It was caused as the
result of a spear thrust and the doctor who examined Khem
Singh, while he was still alive, said that it was
" a punctured wound 2" x 1/2" transverse in direction on
the left side of the abdominal wall in the lower part of the
iliac region just above the inguinal canal.
He also said that
" Three coils of intestines were coming out of the wound."
The incident occurred about 8 p. m. on July 13, 1955. Khem
Singh died about 5 p. m. the following day.
The doctor who conducted the postmortem described the injury
as-
" an oblique incised stitched wound 21/2" on the lower part
of left side of belly, 13" above the left inguinal ligament.
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The injury was through the whole thickness of the abdominal
wall. Peritonitis was present and there was digested food
in that cavity. Flakes of pus were sticking round the small
intestines
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and there were six cuts......... at various places, and
digested food was flowing out from three cuts."
The doctor said that the injury was sufficient to cause
death in the ordinary course of nature.
The learned Sessions Judge found that the appellant was 21
or 22 years old and said-
" When the common object of the assembly seems to have been
to cause grievous hurts only, I do not suppose Virsa Singh
actually had the intention to cause the death of Khem Singh,
but by a rash and silly act he gave a rather forceful blow,
which ultimately caused his death. Peritonitis also
supervened and that hastened the death of Khem Singh. But
for that Khem Singh may perhaps not have died or may have
lived a little longer."
Basing on those facts, he said that the case fell under s.
300, 3rdly and so he convicted under s. 302, Indian Penal
Code.
The learned High Court Judges considered that the whole
affair was sudden and occurred on a chance meeting ". But
they accepted the finding that the appellant inflicted the
injury on Khem Singh and accepted the medical testimony that
the blow was a fatal one.
It was argued with much circumlocution that the facts set
out above do not disclose an offence of murder because 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. Section 300, 3rdly was
quoted:
" If it is done 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."
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 is
fallacious. If there is an intention to inflict an injury
that is sufficient to cause death in the ordinary
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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.
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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 all
injury to the heart is shown to be present, the intention to
inflict ail 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
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" 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 do with the question of intention.
In considering whether the intention was to inflict the
injury found to have been inflicted, the enquiry necessarly
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 convicted, for, if he
does not know that there is a heart or a kidney or bowels,
be cannot be said to have intended to injure them. Of
course, that is not the kind of enquiry. It is broadbased
and simple and based on common sense: the kind of enquiry
that " twelve good men and true could readily appreciate and
understand.
To put it shortly, the prosecution must prove the following
facts before it can bring a case under s. 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.
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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
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(and, of course, the burden is on the prosecution
throughout) the offence is murder under s. 300, 3rdly. It
does not matter that there was no intention to cause death.
It does not matter that there was Do 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 actually found to be present is 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.
We were referred to a decision of Lord Goddard in R v.
Steane (1) where the learned Chief Justice says that where a
particular intent must be laid and charged, that particular
intent must be proved. Of course it must, and of course it
must be proved by the prosecution. The only question here
is, what is the extent and nature of the intent that s. 300
3rdly requires, and how is it to be proved ?
The learned counsel for the appellant next relied on a
passage where the learned Chief Justice says that:
(1) [1947] 1 All E. R. 813, 816.
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"if, on the totality of the evidence, there is room for more
than one view as to the intent of the prisoner, the jury
should be directed that it is for the prosecution to prove
the intent to the jury’s satisfaction, and if, on a review
of the whole evidence, they either think that the intent did
not exist or they are left in doubt as to the intent, the
prisoner is entitled to be acquitted."
We agree that that is also the law in India. But so is
this. We quote a few sentences earlier from the same
learned judgment:
"No doubt, if the prosecution prove an act the natural
consequences of which would be a certain result and no
evidence or explanation is given, then a jury may, on a
proper direction, find that the prisoner is guilty of doing
the act with the intent alleged."
That is exactly the position here. No evidence or
explanation is given about why the appellant thrust a spear
into the abdomen of the deceased with such force that it
penetrated the bowels and three coils of the intestines came
out of the wound and that digested food oozed out from cuts
in three places. 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.
The learned counsel for the appellant referred us to Emperor
v. Sardarkhan Jaridkhan (1) where Beaman J. says that-
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" where death is caused by a single blow, it is always much
more difficult to be absolutely certain what degree of
bodily injury the offender intended."
With due respect to the learned Judge he has linked
(1) (1917) I. L. R. 41 Bom. 27,29.
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up the intent required with the seriousness of the injury,
and that, as we have shown, is not what the section
requires. The two matters are quite separate and distinct,
though the evidence about them may sometimes overlap. 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 be 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 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.
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
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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 appeal is dismissed.
Appeal dismissed.