Kalarimadathil Unni v State of Kerala
Supreme Court of India

22 April 1966
Criminal Appeals Nos. 102 & 103 of 1965
The Judgment was delivered by : M. Hidayatullah, J.
1.  This judgment will also govern the disposal of Criminal Appeal No. 102 of 1965 (Rajwant Singh v. The State of Kerala). The appellants in these two appeals have been convicted under ss. 302/34, 364, 392, 394 and 447 of the Indian Penal Code. Unni (appellant in this appeal) has been sentenced to death and Rajwant Singh (appellant in the other appeal) has been sentenced to imprisonment for life. No separate sentences under the other sections have been imposed on Unni but Rajwant Singh has been sentenced to four years' rigorous imprisonment under ss. 392 and 394, Indian Penal Code, with a direction that the sentences shall run concurrently with the sentence of imprisonment for life. The High Court of Kerala has dismissed their appeals and confirmed the sentence of death on Unni. They now appeal by special leave of this Court.
2.  These appellants were tried with three others, of whom two were acquitted. One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life. He has not appealed to this Court. We are not concerned with them. The case relates to the death of one Lt. Commander Menianha of the Naval Base, I.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963. Unni was attached as a rating to this Naval Base and at the time of the offence was on leave,. Taylor, who has not appealed was an ex-sailor and Rajwant Singh was attached to I.N.S. Vikrant. The case of the prosecution was that these persons conspired together to burgle the safe of the Base Supply Office on the eve of the pay-day, when a large sum of money was usually kept there for distribution on the pay-day. They collected various articles such as a Naval Officer's dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On the night in question they decoyed the Lt. Commander from his house on the pretext that he was wanted at the Naval Base, and in a lonely place caught hold of him. They covered his mouth with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform. They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow. They then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him. The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman. Fearing detection the assailants released the sentry and took to their heels. The sentry after escaping informed the Officer-on-duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants. Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.
3.  Investigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two. The appeals of these persons before the High Court failed. In these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder. It is also contended that s. 34 of the Indian Penal Code could not be used against any of the accused. Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two. We shall deal. with these arguments.
4.  Our attention has been drawn to the inquest and post-mortem reports to establish what was actually done to the Lt. Commander. From these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back. A large adhesive plaster was stuck over his mouth and completely sealed it. A handkerchief was next tied firmly over the adhesive plaster to secure it in position. The nostrils were plugged with cotton soaked in chloroform. Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt. Commander but to render him unconscious. It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt. Commander to breathe through his mouth. The description, however, shows that the nostrils were also plugged with cotton wool soaked in chloroform. This was clearly stated in the inquest report and also in the post-mortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy. In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the photographs. According to the doctor death was due to asphyxiation.
5.  In addition to the other evidence establishing the connection of Unni and Rajwant Singh with this crime there is a confession by Rajwant Singh before the Sub-Magistrate, Cochin in which he graphically describes the part played by him and Unni. Rajwant Singh also stated that they only wanted the Lt. Commander and the sentry to remain unconscious while they rifted the safe and took away the money. It is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established. As this is the most important point in the case we shall consider it first.
6.  This point was argued by Mr. J. G. Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr. Harbans Singh on behalf of Unni. Mr. Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under s. 304 (second part) of the Indian Penal Code. It is quite plain that the acts of the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kW. The short question, therefore, is whether the offence was murder or culpable homicide.
7.  Mr. Sethi submits that of the three clauses of s. 299. which define the offence of culpable homicide, the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death. He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under the first part of s. 304 and the third clause, which involves the causing of death with the knowledge that by his act the offender is likely to cause death, is the foundation of offence of culpable homicide not amounting to murder punish- able under the second part of s. 304.He submits that the appellants did not intend causing the death of the Lt. Commander but took action to keep him immobilised and silent while they rifled the safe. To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in chloroform. Each of these acts denoted a desire to keep the Lt. Commander out of the way for the time being but not to kill him. Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill. At the most, says he, it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were likely to cause death and that brings the matter within s. 304 II, I.P.C.
8.  The argument requires close examination. Two offences in- volve the killing of a person. They are the offence of culpable homicide and the more henious offence of murder. What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in s.300, I.P.C.as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of the appellants in relation to each of the clauses of s. 300.
9.  The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder. As there is no question of any of the exceptions they need not be mentioned. But it is plain that the appellants did not contemplate killing the Lt. Commander. No part of their preparations shows an intention to kill. Had they so desired, they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only to hold his nose closed for a few minutes. The confession to which we have referred also shows that the news of the death of the Lt. Commander came to them with as much surprise as shock. In these circumstances, the first clause of s. 300 cannot apply. The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. The mental attitude here is two-fold. There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. Here the injury or harm was intended. The appellants intended tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform. They intended that the Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this. Can it be said that they had the subjective knowledge of the fatal consequences of the bodily harm they were causing? We think that on the facts the answer cannot be in the affirmative. To say that the act satisfied the test of subjective knowledge would be really tantamount to saying that the appellants intended to commit the murder of the Lt. Commander which, as said already, was not the case.
10.  The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. The State of Punjab ([1968] S.C.R. 1495) 1958 Indlaw SC 82 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.
11.  Applying these tests to the acts of the appellants we have to see first what bodily injury has been established. The bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been preplanned and they, therefore, satisfy the subjective test involved in the clause. The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death. In our judgment they were. The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton. All in all it would have been a miracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants.
12.  Mr. Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils. This is not correct. The victim was placed in the drain by his assailants because his folded shirt was placed under his head and had obviously fainted by that time. No one seems to have been aware of his presence; otherwise discovery would have taken place earlier. This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants. The bodily injury proved fatal in the ordinary course of nature. The ordinary course of nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the assailants, and their acts alone. Mr. Sethi argues that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place. This is true of some cases.
13.  If a blow is given by reason of which death ensues, it may be necessary to prove whether it was necessarily fatal or in the language of the Code sufficient in the ordinary course of nature to cause death. In such a case it may not be open to argue backwards from the death to the blow, to hold that the sufficiency is established because- death did result. As death can take place from other causes the sufficiency is required to be proved by other and separate evidence. There are, however, cases and cases. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else, it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result.
14.  Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved. Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death. This would, of course, have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim. But there was none. There was no interference by anyone else. Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent, or both. Whichever way one looks at it, the injury which caused the death was the one inflicted by the assailants. The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts. There was no need to establish more than this in the case. As was pointed out in Anda v. State of Rajasthan (A.I. R. 1965 S.C. 148 at 151) 1965 Indlaw SC 489 "the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is intended, the offence is murder". In this case the acts of the appellants were covered by the third clause in s. 300. As we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not. That clause comprehends, generally, the commission of imminently dangerous acts which must in all probability cause death. To tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton wool soaked in chloroform is an act imminently dangerous to life, and it may well be said to satisfy the requirements of the last clause also, although that clause is ordinarily applicable to cases in which there is no intention to kill any one in particular. We need not, however, discuss the point in this case. We accordingly hold that the offence was murder.
15.  All the acts were done after deliberation by the appellants. They were of a type which required more than one person to perpetrate. What was done had already been discussed and the execution of the plan was carried out as contemplated. That there was a common intention admits of no doubt and as cl.3 of s. 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must beheld responsible for the resulting offence. Even if the consequence was different from what was actually intended, those who abetted (and the appellants were either offenders principally or abetters) would be equally responsible under s. 113 of the Indian Penal Code provided they knew that the act which they were abetting was likely to cause that effect. On the argument of the appellants that s. 304 11 applies, it is obvious that the above provision must be attracted. In our judgment the appellants were rightly adjudged guilty under s. 302/34, Indian Penal Code.
16.  As regards the sentence of death passed on Unni, we see no Reason to interfere. He was the master mind behind the whole affair and the sentence of death was, therefore, appropriate. We see no force in either appeal. They will be dismissed.
Appeals dismissed.


Augustine Saldanha v State Of Karnataka
Supreme Court of India

26 August 2003
Appeal (crl.) 854 of 1996, [With Criminal Appeal No. 1734 of 1996]
The Judgment was delivered by : Arijit Pasayat, J.
1.  These two appeals relate to the common judgment of Karnataka High Court whereby the judgment of acquittal passed by the Trial Court was set aside. Augustine Saldanha- appellant in Criminal appeal no.854/1996 was held guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo imprisonment for life. Rocky Saldanha-appellant in Criminal appeal no.1734/1996 was found guilty for offences punishable under Section 324 IPC and sentenced to undergo imprisonment for one year. They were also sentenced to pay fine of Rs.5,000/- and Rs.1,000/- respectively with default stipulation of six months SI and one month SI respectively.
2.  Accusations which formed foundation of prosecution version are essentially as follows:
3. On 17.5.1989 Paul Saldanha (hereinafter referred to as 'the deceased') and Felix Saldanha (PW1) were returning to their houses after viewing a movie. When they reached near the house of the appellants, accused Augustine and Rocky along with Henry Saldanha (acquitted) assaulted the deceased. They were armed with sticks. As a result of the assaults the deceased breathed his last while PW1 suffered grievous injuries. The incident took place between 10.00 to 10.30 p.m. On next day morning around 5.15, PW8 ASI, of Mulki Police Station received information from an unknown person of Kumeri that two bodies were lying at Shadguri of Aikala village. Though he could not ask the name and address of the informant, he made entries in the General Diary and proceeded to the spot along with other police personnel. At the spot he found dead body of the deceased and PW1 in injured condition. They were taken to hospital and complaint (Exhibit P-1) was recorded. PW8 registered the FIR after coming to the police station, and dispatched the same to the Magistrate at Mulki which was received at about 11.15 a.m. Investigation was undertaken on the basis of the report of PW1, and after completion thereof charge-sheet was placed. It needs to be noted that on the basis of information given by the accused while in custody recoveries were made. In the complaint (Exhibit P-1) the informant PW1 had stated that he could see assailants by focussing a torch. He had lost consciousness temporarily, but when he was in sense, could hear that PWs 3 and 4 i.e. two taxi drivers were asked by the accused to shift him and deceased to different places; but they refused to do so. In Court, apart from the evidence of PW1 the evidence of PWs 3 and 4 were also tendered and pressed into service to substantiate the accusations. The Additional Sessions Judge of Dakshina Kannada, Mangalore found the evidence of PW1 to be not believable and directed acquittal, and the circumstances which weighed with him are as follows:
4. Credibility of the report (Exhibit P-1) was doubted because the injury sustained by PW1 was so serious that he was given treatment in the emergency room and it was highly improbable that he would have been in a position to give statement (Exhibit P-1). While PW8 stated that he had recorded the complaint, handwriting therein was similar to those in which Exhibits P-8 to P-10 (Panchnamas) were written. Prosecution version was also doubted because PW2 stated at one place that PW1 had been taken out of the hospital at the time of spot inspection, he stated subsequently that PW1 was not taken out. The evidence of PW1 was also discarded on the ground that there were exaggerations and improvements and there was no specific mention about identification by torch and moonlight in Exhibit P-1 as was stated in Court. Only in the first information report, it was mentioned that witness was holding a torch. He also found that the recovery of the torch from the spot was doubtful. It was also noted that the torch was broken and PW1 did not say as to how the torch was broken. The Trial Court doubted the version of PW1 because no explanation was given as to how his shirt was torn and this indicated that there was some violence.
5. The Trial Court noted that PW1 did not specifically say as to why PWs 3 and 4 declined to take the dead body of deceased and PW1 to a different place, though PWs 3 and 4 gave details in Court. Another circumstance to doubt the version of PW1 was that there were several injuries on the body of the deceased, and the PW1, while PW1 stated that one blow each was given to the deceased and to him. With these findings the Trial Court found the accused persons not guilty and they were acquitted. In appeal, the High Court found that each of the reasons given by the Trial Court suffered from vulnerability. The High Court found that evidence of PW1 was credible and cogent. So far as injuries on the deceased and PW1 are concerned, it was noted that doctor had stated that several injuries were possible because of one blow. In case of PW1 one injury related to complaint of pain on the leg. When PW1 had stated specifically about the torch in Exhibit P-1, the mere fact that there was non-mention of moonlight was not good enough to discard the evidence as unreliable. Similarly, even if torch was broken it was not necessary for PW1 to explain how it was broken. Evidence was that he had fallen down after receiving the blow on the head. It was also noticed that PW2-doctor's evidence did not affect the credibility of prosecution evidence that PW1 was taken to the spot, in view of what had been indicated by the doctor in his evidence and as borne out by documents. Merely because PW1 had not indicated in Exhibit P-1 as to why PWs 3 and 4 did not want to take deceased and PW1 in their respective taxies that cannot be considered to be a vital omission. In fact evidence of PWs 3 and 4 clearly establish the role of accused persons and the veracity of prosecution version. With these findings accused Augustine Saldanha was convicted and sentenced by Additional Sessions Judge under Section 302 IPC as aforesaid. Similarly, considering the nature of the injuries sustained by PW1, accused Rocky Saldanha was sentenced to undergo one year imprisonment as noted above for offences punishable under Section 324 IPC.
6.  In support of the appeal learned counsel has submitted that the Trial Court had correctly appreciated the evidence and the High Court was not justified in reversing the findings. It was quite improbable that PW1 identified the accused persons in the dark night. The injuries found on the body of the deceased and PW1 do not tally with the version as stated by PW1 in his evidence.
7.  The evidence of PW1 and PW8 suffers from many infirmities. For example, as to how PW1 who was in unconscious condition could be able to give a report without any medical aid, is not explained. Residually, it was argued that one blow was given in the dark night and it would rule out application of Section 302 IPC.
8.  In response, learned counsel for the State submitted that the High Court has analysed the evidence in detail and found the acquittal not justified. The circumstances which weighed the Trial Court are not germane and the High Court has rightly held that the conclusions were erroneous. The analysis made by the High Court suffers from no infirmity and the conclusions are, therefore, in order. Minor and trifle circumstances were magnified by the Trial Court as rightly observed by the High Court.
9.  We find that the High Court has analysed the evidence in great detail, and concluded that Trial Court's conclusions were fallacious and based on magnification of trifle and unimportant materials, which in no way affected credibility of prosecution version. We find no deficiency in view taken by High Court.
10.  The High Court was, therefore, justified in holding that Augustine Saldanha and Rocky Saldanha were responsible for the death and injury to the deceased and PW1 respectively.
11. The only other point which needs to be considered is whether Section 302 IPC has been rightly made applicable.
12.  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 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 greatest 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.
13.  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.
14.  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.
15.  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.
16.  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 1966 Indlaw SC 91) is an apt illustration of this point.
17.  In Virsa Singh v. State of Punjab, (AIR 1958 SC 465 1958 Indlaw SC 82), 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.
18. 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.
19.  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:
"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."
20.  These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case 1958 Indlaw SC 82 (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.
21.  Thus, according to the rule laid down in Virsa Singh's case 1958 Indlaw SC 82, 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.
22.  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.
23.  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.
24.  The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382 1976 Indlaw SC 192) and recently in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274 2002 Indlaw SC 1777).
25.  Undisputedly the incident took place in a dark night when visibility was poor but identification was possible because the victims of the assailants were known to each other. Therefore, there is nothing wrong in PW1 identifying the accused persons. The fact remains that in the dark night obviously one cannot move without a torch or some other lighted object. In fact, in Exhibit P-1 also there is mention of a torch.
26.  It needs to be noted that only one blow was given in the dark night. Though it cannot be said as a rule of universal application that whenever one blow is given application of Section 302 IPC will be ruled out and that even a single blow delivered with a heavy or dangerous weapon on a vital part of the body would make the offence a murder. On the peculiar facts found in the present case, we feel that clause 'Thirdly' of Section 300 cannot be applied. The blow was said to have been delivered with a stick and in a pitch dark night of time in the forest surroundings of the area where it occurred. It could not reasonably be stated with any certainty that the accused chose that vital part of the body to inflict the injury and that the blow was aimed without any of such specific intention could have landed on the head due to so many other circumstances, than due to any positive intention also. We, therefore, alter the conviction of appellant Augustine Saldanha from Section 302 IPC to Section 304 Part II. Custodial sentence of eight years would meet ends of justice. His appeal is accordingly allowed to the indicated extent. So far as appellant Rocky Saldanha is concerned, in view of the detailed analysis made by the High Court, we do not find any interference with his conviction or the sentence imposed. His appeal is dismissed. The accused persons, who are on bail, are directed to surrender to custody to serve remainder of their sentences.
Appeal dismissed


State of Andhra Pradesh v Rayavarapu Punnayya and Another
Supreme Court of India

15 September 1976
Criminal Appeal No. 214 of 1971. (Appeal by Special Leave from the judgment and Order dated 27-7. 1970 of the Andhra Pradesh High. Court in Criminal Appeals Nos. 26 and 27/69).
The Judgment was delivered by : Ranjit Singh Sarkaria, J.
1.  This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh. It arises out of these facts.
2.  In Rompicherla village, there were factions belonging to three major communities viz., Reddys, Kammas and Bhatrajus. Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress Party, while Kammas were supporters of Swatantra Party. There was bad blood between the two factions which. were proceeded against under s. 107, Cr. P.C. In the Panchyat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also' took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their party-men. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle-shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wail in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the Police Station on the following morning so that a compromise might be effected.
3.  Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under ss. 324, 323 and 325, Penal Code was pending before a Magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.
4.  On the morning of July 23, 1968, at about 6-30 a.m., PWs 1, 2 and the deceased boarded Bus No. AP 22607 at Rompicherla for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal Cross Roads, at about 7-30 a.m., the deceased and his companions alighted for going to the Police Station. The five accused also got down. The deceased and PW 1 went towards a Choultry run by PW 4, While PW 2 went to the roadside to ease himself. A1 and A2 went towards the Coffee Hotel situate near the Choultry. From there, they picked up heavy sticks and went after the deceased into the Choultry. On seeing the accused. P W 1 ran away towards a hut nearby. The deceased stood up.
5.  He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, A-1 and A-2 indiscriminately pounded the legs and arms of the deceased. One of the by standers, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious.The accused then threw their sticks at the spot, boarded another vehicle, and went away. The. occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a temporary. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:
Dislocation of distal end of proximal phalanx of left middle finger.
Fracture of right radius in its middle.
Dislocation of lower end of right ulna.
Fracture of lower end of right femur.
Fracture of medial malleolus of right tibia.
Fracture. of lower 1/3 of right fibula.
Dislocation of lower end of left ulna.
Fracture of upper end of left tibia.
Fracture of right patella.
6.  Finding the condition of the injured serious, the Doctor sent information to the Judicial Magistrate for getting his dying declaration -recorded. On Dr. K. Reddy's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr. Sastri. His dying declaration, Ex. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.
7.  The autopsy was conducted by Dr. P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the Doctor, was shock and haemorrhage resulting from multiple injuries.
8.  The trial Judge convicted A-1 and A-2 under s. 302 as well as under s. 302 read with s. 34, Penal Code and sentenced each of them to imprisonment for life.
9.  On appeal by the convicts, the High Court altered their conviction to one under s. 304, Pt. II, Penal Code and reduced their sentence to 'five years rigorous imprisonment, each.
10.  Aggrieved by the judgment of the High Court, the State has come in appeal to this Court after obtaining special leave.
11.  A-1, Rayavarappu Punnayya (Respondent 1) has, as reported by his Counsel, died during the pendency of this appeal. This information is not contradicted by the Counsel appearing for the State. This appeal therefore, in so far as it relates to A, abates.
The appeal' against A-2 (Respondent 2), however, survives for decision.
'The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is 'murder' or 'culpable homicide not amounting to murder'.
12.  In the scheme of the Penal Code, '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 this generic offence, the Code practically recognises three degress 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 s. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of s. 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 s. 304.
13.  The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. 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 minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
14.  Cl. (b) of s. 299 corresponds with cls. (2) and (3) of s. 300. The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional 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 el. (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 cl. (2) is borne out by illustration (b) appended to s. 300.
15.  Cl. (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl. (2) of s. 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 he,art, 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.
16.  In cl. (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding el. (b) of s. 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 cl. (b) of s. 299 and cl. (3) of s. 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 cl. (b) of s. 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.
17.  For cases to fall within cl. (3), it is not necessary that the offender intended to cause death, So long as 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, A.I.R. 1966 S.C. 1874 is an apt illustration of this point.
18.  In Virsa Singh v. The State of Punjab, [1958] S.C.R. 1495 1958 Indlaw SC 82 Vivian Bose j. speaking for this Court, explained the meaning' and scope of Cl. (3), thus (at p. 1500):
"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. 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."
19.  Thus according to the rule laid down in Virsa Singh's case 1958 Indlaw SC 82 (supra) 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 s. 300 clearly brings out this point.
20.  Cl. (c) of s. 299 and cl. (4) of s. 300 both require knowledge of the probability of the 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 cl. (4) of s. 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.
21.  From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not. amounting to murder,' on ,the facts of a case, it will' be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in s. 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s. 304, depending. respectively, on whether the second or the third Clause of s. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s. 304, Penal Code.
22.  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 inter-twined 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.
23.  Now let us consider the problem before us in the light of the above enunciation.
24.  It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connection between the beating administered by A-1 and A-2 to the deceased and his death. The accused confined the beating to. the legs and arms of the deceased, and therefore, it can be said that they perhaps had no "intention to cause death" within the contemplation cl. (a) of s. 299 or cl. (1) of s. 300. It is nobody's case that the instant case falls within el. (4) of s. 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of imminent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under el. (4) of s. 300. His sole contention is that even if the accused had no intention to cause death, the facts established fully bring the case within the purview of cl. (3) of s. 300 and as such the offence committed is murder and nothing less. In support of this contention reference has been made to Andhra v. State of Rajasthan, A.I.R. 1966 S.C. 148 1965 Indlaw SC 489 and Rajwant Singh v. State of Kerala (supra).
25.  As against this, Counsel for the respondent submits that since the accused selected only non-vital parts of the body of the deceased, for inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under cl. (3) of s. 300; at the most, it could be said that they had knowledge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of s. 299, and the offence committed was only "culpable homicide not amounting to murder", punishable under s. 304, Part 11. Counsel has thus tried to support the reasoning of the High Court.
26.  The trial Court, 'as 'already noticed, had convicted the respondent of the offence of murder. It applied the rule in Virsa Singh's case 1958 Indlaw SC 82 (supra). and the ratio of Anda v. State 1965 Indlaw SC 489 and held that the case was clearly covered by clause
27.  Thirdly of s. 300. The High Court has disagreed with the trail Court and held that the offence was not murder but one under s. 304, Pt. II.
The High Court reached this conclusion on the following reasoning:
"(a) "There was no premeditation in the attack. It was almost an impulsive act".
(b) "Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts the body."
(c) "There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding". (which) "according to PWI might have stopped with in about half an hour to one hour."
(d) "Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage also, as stated by PW 12... who conducted the autopsy. This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein. From the injuries inflicted the accused therefore could not have intended to cause death."
(e) "A1 and A2 had beaten the deceased with heavy sticks. These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of... , therefore considerable force must have been used while inflicting the blows. Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminently dangerous that in all probability their acts would result in such injuries as are likely to cause the death. The offence ...is therefore culpable homicide falling under s. 299, I.P.C. punishable under s. 304 Part II and not murder."
28.  With respect we are unable to appreciate and accept this reasoning. With respect, to be inconsistent, erroneous and largely speculative, it appears to us.
29.  To say that the attack was not premeditated or pre-planned is not only factually incorrect but also at war with High Court's own finding that the injuries were caused to the deceased in furtherance of the common intention of A-1 and A-2 and therefore, s. 34, I.P.C. was applicable. Further, the finding that there was no compound fracture, no heavy haemorrhage and the cause of the death was shock, only, is not in accord with the evidence on the record. The best person to speak about haemorrhage and the cause of the death was Dr. P.S. Sarojini (PW 12) who had conducted the autopsy. She testified that ,the cause of death of the deceased was "shock and haemorrhage due to multiple injuries". This categorical opinion of the Doctor was not assailed in cross-examination. In the post-mortem examination report Ex. P-8, the Doctor noted that the heart of the deceased was found full of clotted blood. Again in injury No. 6, which also was an internal fracture, the bone was visible through the wound. Dr. D.A. Sastri, PW 26, had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein, but also blood.
30.  This part of his statement wherein he spoke about the giving of blood transfusion to the deceased, appears to have been overlooked by the High Court. Dr. Kondareddy, PW 11, who was the first Medical Officer to examine -the injuries of the deceased, had noted that there was bleeding and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle. Dr. Sarojini, PW 12, found fracture of the left tibia underneath this injury. There could therefore, be no doubt that this was a compound fracture. P.W. 11 found bleeding from the other abraded injuries, also. He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration. PW 11 also advised immediate removal of the deceased to the bigger Hospital at Guntur. There, also, Dr. Sastri finding that life in the patient was ebbing fast, took immediate two-fold action.
31.  First, he put the patient on blood transfusion. Second, he sent an intimation for recording his dying declaration. A Magistrate (PW 10) came there and recorded the statement.
32.  These are all tell-tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures. This being the case, there was absolutely no reason to doubt the sworn word of the Doctor, (PW 12) that the cause of the death was shock and haemorrhage.
33.  Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr. Sarojini in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.
34.  It will be worthwhile to extract that quotation from Mody, as a reference to the same was made by Mr. Subba Rao before us, also.
35.  According to Mody: "Fractures are not ordinarily dangerous unless they are compound, when death may occur from ,loss of blood, if a big vessel is wounded by the split end of a fractured bone."
36.  It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial haemorrhage. In the face of this finding, Mody's opinion, far from advancing the contention of the defence, discounts it.
37.  The High Court has held that the accused had no intention to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceased. There is much that can be said in support of this particular finding. But that finding assuming it to be correct does not necessarily take the case out of the definition of 'murder'. The crux of the matter is, whether the facts established bring the case within Clause Thirdly of s. 300. This question further narrows down into a consideration of the two-fold issue :.
(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ?
(ii) If so, were they sufficient to cause death in the ordinary course of nature ?
38.  If both these elements are satisfactorily established, the offence will be 'murder', irrespective of the fact whether an intention on the part of the accused to cause death, had or had not been proved.
39.  In the instant case, the existence of both these elements was clearly established by the prosecution. There was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions since long. Both the factions had been proceeded against under s. 107, Cr. P.C.
The accused had therefore a motive to beat the deceased.
40.  The attack was premeditated and pre-planned, although the interval between the conception and execution of the plan was not very long. The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him. They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones. mostly major bones, and dislocating two more. The beating was administered in a brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof. Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of Clause Thirdly of s. 300 had been cogently and convincingly established.
41.  This takes us to the second element of Cl. (3). Dr. Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death. In her opinion--which we have found to be entirely trustworthy the cause of the death was shock and haemorrhage due to the multiple injuries. Dr. Sarojini had conducted the post-mortem examination of the deadbody of the deceased. She had dissected the body and examined the injuries to the internal organs. She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the sufficiency or otherwise of the injuries from which the death ensued. Dr. Sarojini's evidence on this point stood on a better footing than that of the Doctors (PWs. 11 and 26) who had externally examined the deceased in his life-time. Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature. There is no reason why Dr. Sarojini's evidence with regard to the second element of Cl. (3) of s. 300 be not accepted. Dr. Sarojini's evidence satisfactorily establishes the presence of the second element of this clause.
42.  There is therefore, no escape from the conclusion, that the offence committed by the accused was 'murder', notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt.
43.  In Anda v. State of Rajasthan 1965 Indlaw SC 489 (supra), this Court had to deal with a very similar situation. In that case, several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs, a hematoma on the forhead and a bruise on the chest. Under these injuries to the arms and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula. There was loss of blood from the injuries. The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient.
44.  Question arose whether in such a case when no significant injury had been inflicted on a vital art of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder' or merely 'culpable homicide not amounting to murder'. This Court speaking through Hidayatullah J. (as he then was), after explaining the comparative scope of and the distinction between ss. 299 and 300, answered the question in these terms:
"The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of s. 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that every one joined in beating him. It is also clear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said that his death was intended. This is sufficient to bring the, case within 3rdly of s. 300."
45.  The ratio of Anda v. State of Rajasthan 1965 Indlaw SC 489 (supra) applies in full force to the facts of the present case. Here, a direct causal connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus etc., supervened. There was no doubt whatever that the beating was premeditated and calculated. Just as in Anda's case, here also, the aim of the asailants was to smash the arms and legs of the deceased, and they succeeded in that design. causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms.
46.  While in Anda's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons. All these acts of the accused were pre-planned and intentional, which, considered objectively in the light of the medical evidence. were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of Clause 3rdly of s. 300. The expression "bodily injury" in Clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause. as a
47. ready noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fail under Clause 3rdly of s. 300. All the conditions which are a pre-requisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was 'murder'.
48.  For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under s. 302, 302/34, to that under s. 304, Part II, Penal Code. Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail shall be arrested and committed to prison to serve out the sentence inflicted on him.


Abdul Waheed Khan Alias Waheed and Others v State of Andhra Pradesh
Supreme Court of India

27 August 2002
Appeal (Cr.) 917-920 of 2002
The Judgment was delivered by : Arijit Pasayat, J.
1. These four appeals relate to a common judgment passed by a Division Bench of the Andhra Pradesh High Court, whereby three appeals filed by the accused-appellants and one by the State were disposed of. While the accused-appellants challenged their conviction u/s. 304 Part I read with S. 34 of the Indian Penal Code, 1860 (in short 'IPC'), State had taken the stand that accused-appellants should have been convicted u/s. 302 read with S. 34 IPC and the two accused who had been acquitted by the trial court should have also been convicted. The appeals filed by the accused-appellants were dismissed and the appeal filed by the State was partially allowed by converting sentence to S. 302 IPC.
2. Prosecution version sans unnecessary details as unfolded during trial was as follows:-
3. Accused no.4 Babu Jani @ Majid Khan @ Majid was an ex-employee of Hazi Mohd. Yakub (hereinafter referred to as 'deceased'), who had five textile wholesale shops, which he was running along with his sons and grandsons. Accused Babu Jani joined hands with city dossier criminals, namely, Abdul Waheed Khan @ Waheed (accused no.1), Mohd. Haneef @ Haneef (accused no.2) and Mohd. Khadeer @ Khadeer (accused no.3); and hatched a plan with the aforesaid three accused persons and a friend of his namely, Aleem (accused no.5). The object was to rob the deceased, and if necessary by liquidating him. Accused Babu Jani had the knowledge that the deceased used to go his house around 8.00 p.m. with the sale proceeds of the shops and the collections were more than rupees one lakh. In pursuance of the conspiracy, accused Babu Jani took the first three accused on 19 February 1993 and 20 February 1993 between 7 and 7.30 p.m., to point out the deceased and to acquaint them with his movements of a fixed nature.
4. First attempt was made on 22 February 1993, but finding a lot of people around the spot, the intended objective could not be achieved. On the next day i.e. 23 February 1993 the fateful date of the incident, at about 7.30 p.m. after obtaining information from accused Babu Jani accused nos.1 to 3 waited near house of the deceased on a stolen Chetak scooter and were armed with the knives. Accused no.2 was having a plastic tin containing chilly powder water in his hands. At about 7.45 p.m. the deceased reached near his house in his Ambassador car driven by Mohd. Taher PW2. He was carrying cash of more than Rs.2.32 lakhs and demand drafts of Rs.1,60,000/- which were in his cloth bag. When the driver opened the rear right door of the car and went to collect the tiffin-carrier of the deceased from the left front door, accused nos. 1 to 3 kept their scooter in motion and rushed to the deceased Hazi Mohd. Yakub and began stabbing him indiscriminately with their three knives, while accused no.2 tried to snatch the bag containing the cash and the demand drafts. There was street light and also light inside the car. When PW2 rushed to the rescue of the deceased, accused no. 2 threw chilly powder water on his face and he shouted for help. Further knife blows were given by the three accused persons till the deceased collapsed. Accused no.2 snatched away the cash bag from the hands of the deceased and all the three accused persons fled away on their scooter. Though PW2 and one Samad Khan (PW-4) chased the accused persons to some distance, they succeeded in fleeing away. Several other persons including Mohd. Idris Ali Khan, Mohd. Abdul Bari (PW-3) tried to come near the deceased, but they found him dead. The three accused Nos. 1 to 3 went to the house of accused Aleem at Boda Banda where accused Babu Jani was waiting for them. Aleem harboured accused nos. 1 to 4 in his house and they shared the looted money but destroyed the demand drafts. Police on getting information reached at the spot and the First Information Report was lodged by Mohd. Iqbal (PW-1). Investigation was conducted and on completion thereof charge-sheet was filed.
5. While the first three accused persons were charged for having committed offences punishable u/s. 302 IPC read with S. 34 thereof and S. 392 read with S. 34 thereof, and S. 25(1-B) of the Arms Act, 1959 (in short 'Arms Act'). The first four accused persons were charged with commission of offences punishable u/s. 302 read with Section 120-B(1) IPC as well with S. 392 read with Section 120-B(1) IPC. Accused no.5 was charged with commission of offence punishable u/s. 302 read with S. 212 IPC, and S. 411 IPC. The accused persons pleaded innocence.
6. In order to substantiate its case, the prosecution examined 33 witnesses. The trial court found the evidence of the eye-witnesses to be credible and held accused nos. 1 to 3 to be guilty. However, it was concluded that the offences for the commission of which accused nos.1 to 3 were to be convicted related to S. 304 Part I and S. 392 read with S. 34 IPC. They were sentenced to suffer rigorous imprisonment for a period of ten years each on the first count, and also to undergo seven years rigorous imprisonment for the second. Both the sentences were directed to run concurrently. While the accused persons filed appeals against their conviction and sentence before the High Court, State challenged the conviction for lesser offence, and also against the acquittal of the other two accused persons. As noted above, the High Court held accused persons to be guilty of offence punishable u/s. 302 IPC, and not u/s. 304 Part I. Accordingly, the State's appeal to that extent was allowed. But the acquittal of the other accused persons was upheld. Judgment of the High Court, as noted above, is the subject matter of challenge in these appeals.
7. Learned counsel for the appellants submitted that the evidence on which the trial court has placed reliance does not inspire confidence. The accused persons were put to test identification parade after their arrest. PW 2, the driver did not participate in the first test identification parade and only after a month a second test identification parade was conducted when PW2 participated and identified the accused persons. According to the learned counsel delay in conducting the parade corroded prosecution version. Ultimately, it was submitted that looking into the circumstances, Trial Court came to the right conclusion that the accused were to be convicted u/s. 304 Part I IPC and not u/s. 302 IPC. The High Court should not have altered the conviction. Learned counsel for the appellant has submitted that the doctor PW8, who conducted the post-mortem has found injury no.10 in Ex.P/5 to be an abrasion on the left temple of the deceased and it is possible on account of fall on the rough surface. Similarly, internal injury no.2 corresponded to external injury no.10. From this the trial court had arrived at the conclusion that it was not possible to draw an inference about accused nos.1 to 3's intention to kill the deceased for robbing the cash.
8. The learned counsel for the State submitted that the trial court has dealt with in detail as to why there was some delay in holding the test identification parades. It is to be noted that the accused persons were arrested after about 2 months of the date of occurrence. They were placed in police custody and thereafter under judicial custody. Immediately after the accused persons were arrested a motion was made to the concerned court for test identification parade and moment the court fixed the date, the test identification parade was conducted. As PW2 was not available on the first date, a second test identification parade was done. The High Court found no substance in the plea of the accused-appellants that the witnesses identified the accused persons as they were in jail prior to this identification parade. It was noted with reference to the evidence of concerned Metropolitan Magistrate who conducted the test identification parade that due formalities were observed before conducting test identification parades. It also held that the reason for delay has been duly explained.
9. Coming to the applicability of S. 302 IPC, it is submitted that though the intention was to rob the deceased, when the deceased resisted, in order to achieve the intended object, he was indiscriminately stabbed till he succumbed to death and the cash and the drafts were snatched away. The High Court was justified in its conclusion about the applicability of S. 302 IPC.
10. The High Court has duly considered the injuries highlighted by Trial Court and found the approach to be wrong. The respective stands need careful consideration.
11. As was observed by this Court in Matru @ Girish Chandra v. The State of U.P. (AIR 1971 SC 1050 1971 Indlaw SC 275), identification tests do not constitute substantive evidence. They are primarily meant for purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. [See Santokh Singh v. Izhar Hussain and Anr. (AIR 1973 SC 2190 1973 Indlaw SC 112)]. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witness of the crime.
12. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short the 'Code') and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond the control and there is some delay, it cannot be said to be fatal to the prosecution. In the instant case, the factual scenario noted by the trial court reveals that all possible efforts were made to have test identification parade immediately after the arrest of the accused persons. The accused persons were arrested on 25 May 1993 were in police custody from 09 June 1993. On 16 June 1993 requisition was given to the Magistrate to hold the identification and first test was held on 26 June 1993 by the Magistrate. As PW-2 was not available, on request of police second test was held. Merely because the second test identification parade was held that cannot be a suspicious circumstance as prosecution has explained as to why that was necessitated. In view of the credible and cogent evidence of the eye-witnesses we do not find any substance in the plea that the testimony of the witnesses suffered from any infirmity. The appellants have already been held to be the authors of the crime. The Trial Court analysed evidence of the eyewitnesses in great detail. They have graphically described the incident. Incisive cross-examination has not brought any doubt on the truthfulness of their statements. High Court in appeal has also dealt with the acceptability of the evidence and found it to be flawless.
13. 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 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 greatest form of culpable homicide, which is defined in S. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of S. 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 S. 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 Ss. 299 and 300, the following comparative table will be helpful in appreciating the points of distinction between the two offences.
14. Cl. (b) of S. 299 corresponds with cls. (2) and (3) of S. 300. The distinguishing feature of the mens rea requisite u/cl. (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 cl. (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 cl. (2) is borne out by illustration (b) appended to S. 300.
15. Cl. (b) of S. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling u/cl. (2) of S. 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.
16. In cl. (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding cl. (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 cl. (b) of S. 299 and cl. (3) of S. 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 cl. (b) of S. 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. 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 Ors. v. State of Kerala, AIR 1966 SC 1874 is an apt illustration of this point.
17. In Virsa Singh v. State of Punjab, AIR 1958 SC 465 1958 Indlaw SC 82, Vivian Bose, J. speaking for the Court, explained the meaning and scope of cl. (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.
18. 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".
19. First, it must establish, quite objectively, that a bodily injury is present.
20. Secondly, the nature of the injury must be proved. These are purely objective investigations.
21. 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.
22. The learned Judge explained the third ingredient in the following words :-
"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."
23. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case 1958 Indlaw SC 82 (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 S. 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 S. 300 clearly brings out this point. Cl. (c) of S. 299 and cl. (4) of S. 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 cl. (4) of S. 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.
24. 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, 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 the this Court in State of Andhra Pradesh v. Rayavarapu Punnayya (1976 (4) SCC 382 1976 Indlaw SC 192). In the case at hand, the evidence of the witnesses was that the three appellants had indiscriminately stabbed the deceased, though their object was to rob deceased. As established by evidence of eye-witnesses the accused persons expected resistance and all the three were armed with knives. It cannot be said that they expected no resistance even if they intended to rob a huge sum of money. The intended object was to get the money. When there was expected resistance by the deceased, they went on giving stabs with the knives till the deceased lost his life and thereafter the cash and the demand drafts were snatched. It is the intention prevailing at the time of assaults, which determines the applicability of the relevant provisions. One of the factors which appears to have weighed with the trial court, and on which the reliance was placed to alter conviction to S. 304 Part I was the finding that the two injuries which were stated by the doctor PW8 to be sufficient to cause the death were possible by fall. A reading of the post-mortem report indicates that several injuries were stated by the doctor to be the cause of death and the two injuries noticed by the trial court were not the only ones.
25. In fact, injury no.5 i.e. stab injury was one of them. There were six stab wounds. The doctor stated injury Nos. 5, 7 and 11 and internal injuries 1 and 2 were sufficient to cause death in the normal course of nature. Much was made by the trial Court of the statement of PW-8 to the effect that cause of death could be stab wounds associated with head injury. It was, however, not noticed that the doctor clarified to the following effect: "The Stab wounds as well as the head injury are individually sufficient to cause death". The stab wounds came first and then the possible fall. Taking into account the totality of the circumstances the conviction recorded by the High court u/s. 302 IPC cannot be faulted.
The appeals deserve dismissal, which we direct.
Appeals dismissed.