Full Judgment Text
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CASE NO.:
Appeal (crl.) 1456 of 2004
PETITIONER:
Thangaiya
RESPONDENT:
State of Tamil Nadu
DATE OF JUDGMENT: 08/12/2004
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P. (Crl.) No. 5080 of 2003
ARIJIT PASAYAT, J.
Leave granted.
Appellant calls in question legality of the judgment rendered by
a Division Bench of the Madras High Court confirming his conviction for
offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short ’IPC’), and sentence of imprisonment for life as awarded by the
learned Sessions Judge, Kanyakumari.
Background facts as unfolded during trial by the prosecution are
essentially as follows:
One Selvamani Nadar (hereinafter referred to as the ’deceased’)
was having industry and he employed a number of girls. The accused
used to make fun of the girls/workers outside the factory and this was
objected to by the deceased several times. On that score, there had
been enmity between the deceased and the accused.
At about 8.30 p.m. on 1.5.1990, PW-1, PW-2 and one Murugesan were
standing in front of Bensam Ground, south of Kulachal-Nagercoil Mail
Road. The accused was sitting on the eastern side of a culvert. There
was a tube light burning and hence there was enough light at that
place. At that time, the deceased, who came in a bicycle proceeding
from east to west, took a turn towards south. The accused rushed to
the deceased saying "you die, old man" and hit him with a stick (M.O.1)
on his head. The deceased sustained injuries and there was profuse
bleeding. PW-1, PW-2 and Murgesan immediately went near him and when
the accused saw them coming near ran towards west, leaving the weapon
viz., M.O.1 stick. Thereafter, PW-1, PW-2, Murugesan and the wife of
the deceased took the deceased to the Government Hospital at Kulachal.
After giving first aid to the deceased, the doctors in the said
hospital advised to take the deceased to Nagercoil for further
treatment. The aforementioned persons thereafter took the deceased to
Nagercoil and at the Government Hospital, Kottar, the deceased was
treated by Doctor Rani Fnoch (PW-6).
The doctor found several injuries. PW-1 narrated the incident to
the Head Constable (PW-10) at the police station who recorded the first
information report (Ex.P-11). Same was dispatched to the Court of
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Judicial Magistrate. Assistant Surgeon, Government Hospital (PW-7)
treated the deceased who breathed his last at about 1.25 a.m. on
2.5.1990. On receiving information about the death the case which was
originally registered under Sections 307, 323 and 341 IPC was
registered under Section 302 IPC, and necessary information was sent to
the Court of Judicial Magistrate. On postmortem 6 injuries were
noticed, out of which 3 were external and the rest were internal.
Injuries 1 and 2 as noticed were abrasions but the fatal injury i.e.
injury No.3 was stated to be 4" linear oblique sutured wound over the
right parietal scalp. The doctor opined that the injury was sufficient
in ordinary course of nature to cause death. On 4.5.1990 the accused
was arrested and after completion of investigation the charge sheet was
placed. The accused pleaded innocence. The Trial Court found that the
evidence of eye witnesses PWs. 1, 2 and 3 were cogent and credible.
The accused used to tease girls working in the factory of the deceased.
When the deceased objected to the same, there was some misunderstanding
and at the time of occurrence when the deceased was coming by bicycle,
the accused rushed towards him and attacked him; resulting the fatal
injury. When the eye witnesses rushed to help the deceased, the
accused ran away. Placing reliance on the evidence and considering the
entire material on record the trial Court found the accused guilty and
convicted as aforesaid. An appeal was preferred before the High Court
questioning the conviction and sentence. Before the High Court, it was
urged that PWs. 1 and 2 were related to the deceased, and PW-3 was a
chance witness and no credence should be put on their evidence. The
High Court did not accept the plea and finding the analysis of evidence
by the trial Court to be in order, upheld the conviction and sentence.
In support of the appeal, learned counsel for the appellant
submitted that the evidence of PW-3 who was treated as an independent
witness was that a chance witness and his evidence should not have been
relied upon. It is further submitted that even if the prosecution
version is accepted in toto no case for application of Section 302 IPC
has been made out. Only one blow with a small stick was given.
Per contra, learned counsel for the respondent-State supported
the judgment of the Courts below and submitted that the judgments are
well reasoned and no interference is called for.
Coming to the plea of the accused that PW-3 was ’chance witness’
who has not explained how he happened to be at the alleged place of
occurrence, it has to be noted that the said witness was an independent
witness. There was not even a suggestion to the witness that he had any
animosity towards the accused. In a murder trial by describing the
independent witnesses as ’chance witnesses’ it cannot be implied
thereby that their evidence is suspicious and their presence at the
scene doubtful. Murders are not committed with previous notice to
witnesses; soliciting their presence. If murder is committed in a
dwelling house, the inmates of the house are natural witnesses. If
murder is committed in a street, only passersby will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the
ground that they are mere ’chance witnesses’. The expression ’chance
witness’ is borrowed from countries where every man’s home is
considered his castle and everyone must have an explanation for his
presence elsewhere or in another man’s castle. It is quite unsuitable
an expression in a country where people are less formal and more
casual, at any rate in the matter explaining their presence. Therefore,
there is no substance in the plea that PW-3’s evidence which is clear
and cogent is to be discarded.
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 vice-versa. Speaking generally, ’culpable homicide’
sans ’special characteristics of murder is culpable homicide not
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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.
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 \026 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
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(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.
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.
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 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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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.
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.
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. This part of the enquiry
is purely objective and inferential and has nothing
to do with the intention of the offender."
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
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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."
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.
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 be
murder. Illustration (c) appended to Section 300 clearly brings out
this point.
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
\026 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.
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.
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), and Augustine Saldanha v. State of Karnataka
(2003 (10) SCC 472).
Keeping the aforesaid legal principles in view, the factual
position is to be examined. 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. In the instant case admittedly
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one blow was given with a small stick, and the place where the assault
took place was dimly lit. Inevitable conclusion is that the case is
covered by Section 304 Part I IPC and not Section 302 IPC. The
conviction is accordingly altered. Custodial sentence of 10 years
would meet the ends of justice.
The appeal is allowed to the aforesaid extent.