1
Reserved
CRIMINAL APPEAL NO. 669 OF 1981
Bhagwati vs. State of U.P.
HON'BLE SATYENDRA SINGH CHAUHAN, J.
HON’BLE SHRI KANT TRIPATHI, J.
(Delivered by Hon’ble Shri Kant Tripathi, J.)
1. The appellant Bhagwati has preferred this appeal against the
judgment and order dated 21.9.1981 rendered by Sri N.B.
Asthana, the then II Additional Sessions Judge, Raebareli in S.T.
No. 6 of 1981, State versus Bhagwati, whereby the learned
Additional Sessions Judge has convicted and sentenced the
appellant under section 302 IPC to under go imprisonment for
life.
2. The prosecution story leading to this appeal is that the appellant
Bhagwati and the deceased Vrinda Ban’s daughter PW-3 Dharma
Devi were husband and wife but their relations were strained due
to which PW-3 Dharma Devi was living in the house of her
father and was not agreeable to go and live with the appellant.
According to PW-3 Dharma Devi, she was being ill-treated by
the appellant and his family members, due to which she started
to live with her parents leaving the house of the appellant. It
may, however, be mentioned that PW-3 Dharma Devi had lived
for about six months in all with the appellant before the incident
in question. On 5.11.1979, the deceased Vrinda Ban, his daughter
PW-3 Dharma Devi and his son Goverdhan had visited the house
of the informant PW-1 Shiv Bhajan, who happens to be the
maternal uncle of PW-3 Dharma Devi, in connection with Hatiya
Ka Mela. The appellant Bhagwati had also come there to request
the deceased to “send off” of PW-3 Dharma Devi with him and
2
stayed in the house of PW-1 Shiv Bhajan in the night. The
2.
appellant tried to persuade PW-3 Dharma Devi even at the house
of PW-1 Shiv Bhajan but she was not agreeable to go with the
appellant, consequently, the deceased Vrinda Ban refused to
‘send off’ PW-3 Dharma Devi. It is also alleged that on 6.11.1979
at about 5.30 PM the deceased, his son and daughter (PW-3
Dharma Devi) as well as the appellant left the house of
informant PW-1 Shiv Bhajan for going to their houses. When
they reached the village Kakrahiya Purwa near a well at about
5.30 PM an exchange of hot words took place between the
appellant and the deceased. The appellant, thereupon assaulted
the deceased with a hockey stick, consequently, the deceased
sustained a serious head injury and became unconscious. The
appellant fled away after assaulting the deceased. It is also
alleged that the deceased was immediately taken to the District
Hospital Raebareli for treatment where he succumbed to injuries
on the next morning at about 5.00 AM. After the death of the
deceased Vrinda Ban, his brother in law Shiv Bhajan (PW-1)
lodged the FIR at police station Dalmau on 7.11.1979 at about
12.30 PM, on which basis the police registered the case and held
the investigation.
3. The deceased Vrinda Ban was medically examined on 7.11.1979
at about 4.30 AM by PW-4 Dr. Surendra Singh at the District
Hospital, Raebareli at the time of his admission in the hospital.
The following injury was found on the body of the deceased :
“Lacerated wound 7 Cm x 1 Cm x skull deep (bone)
over left aspect of scalp 5 Cm above the eye brow
left longitudinally.
Margins were red and swollen.”
4. The injured (deceased) was unconscious at that time. His pupils
were dilated and were not reacting to light. The injury was kept
under observation and an x-ray thereof was advised. According
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to Dr. Surendra Singh (PW-4) the injury of the injured
(deceased) was caused by a blunt object and was about a half day
3.
old at the time of medical examination. The injury report
prepared by Dr. Surendra Singh (PW-4) is on record as Exhibit
Ka-2.
5. The deceased died in the District Hospital, Raebareli on
7.11.1979 at about 6.40 AM. PW-6 Dr. K.N. Mehrotra had made
the postmortem examination on the dead body of the deceased
on 7.11.1979 at about 4.00 PM. The following ante-mortem
injury was found on the dead body of the deceased:
“Lacerated wound 7 Cm x 1 Cm x bone deep, towards
left side of the head, vertical at a distance of about 4.5
Cm from the left eye brow.”
6. Upon internal examination fractures of frontal and left parietal
bones of skull were also found. A big haematoma towards the
left side of the brain was also found by Dr. K.N. Mehrotra (PW-
6). The cause of death was due to shock and haemorrhage as a
result of the head injury, which according to Dr. Mehrotra, was
sufficient in the ordinary course to cause death. Postmortem
examination report prepared by PW-6 Dr. K.N. Mehrotra is on
record as Exhibit Ka-8.
7. PW-5 Kesho Ram Verma (the investigating officer) made
investigation of the case. He visited the place of occurrence and
prepared the site plan (Exhibit Ka-5) and collected blood stained
earth and plain earth from the place of occurrence and prepared a
memo thereof (Exhibit Ka-6) and after concluding the
investigation, submitted the charge sheet (Exhibit Ka-7) against
the appellant.
8. The appellant Bhagwati was charged under section 302 IPC. He
denied the charge and claimed to be tried.
9. The prosecution examined as many as seven witnesses in support
of its case. PW-1 Shiv Bhajan, who is the real brother in law of
the deceased and was present at the time of the incident, has
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proved the FIR (Exhibit Ka-1) and has also given an eye witness
account of the occurrence. It is alleged that this witness was
going to village Kurhwal alongwith the deceased, the appellant
4.
and PW-3 Dharma Devi. PW-2 Swami Deen, who is alleged to
be an independent witness and a resident of the locality, was
present in a nearby field and witnessed the occurrence therefrom
and also visited the place of occurrence on hearing the quarrel.
He has also supported the prosecution story. PW-3 Dharma Devi,
who was the wife of the appellant and was moving with the
deceased, has also supported the prosecution story. PW-4 Dr.
Surendra Singh, who had medically examined the deceased in
the District Hospital, Raebareli at the time of his admission, has
proved the aforesaid injury sustained by the deceased as well as
the injury report, Exhibit Ka-2. PW-6, Dr. K.N. Mehrotra, who
had done the postmortem examination on the dead body of the
deceased, has proved the aforesaid ante-mortsem injury found on
the dead body of the deceased as well as the postmortem
examination report (Exhibit Ka-8). PW-5, Kesho Ram Verma
(investigating officer) and PW-7, Krishna Niwas Tiwari (head
constable) have given the evidence of formal nature.
10. The appellant was examined under section 313 CrPC. He has
admitted that PW-3 Smt. Dharma Devi was his wife and after the
marriage she visited thrice to his house and remained there for
about six months in all. He has further admitted that he had gone
to the house of Shiv Bhajan (PW-1) on 6.11.1979 to take back
PW-3 Dharma Devi with him. There was none except him and
the deceased at the time of the incident. On the passage,
exchange of some hot words took place between him and the
deceased regarding vidai of PW-3 Dharma Devi, consequently,
the deceased became furious and inflicted 5-6 injuries on him.
The appellant further pleaded that he assaulted the deceased with
a hockey stick in exercise of the right of private defence.
5
11. The appellant has examined DW-1 Dr. Deo Kumar Mishra,
Medical Officer, Primary Health Centre, Kathar, Rae Barerli, to
prove the following injuries sustained by the appellant as well as
his injury report Exhibit Kha-1:
5.
(i) Swelling 5 Cm x 2 Cm on lateral aspect of right thigh.
Tenderness was present.
(ii) Diffused swelling on the dorsum of left palm. Tenderness
was present.
(iii) Abrasion 1 Cm x .5 Cm on the anterior side of left leg.
(iv) Swelling 1.5 Cm x 1.5 Cm on the scalp near the right
parietal eminence.
12. Dr. Deo Kumar Mishra (DW-1) has also stated that a complaint
of pain on the right lateral side of chest with no mark of injury
was also made at the time of the medical examination of the
appellant. All the injuries sustained by the appellant were simple,
fresh and caused by some blunt object.
13. No other witness was examined in support of the defence.
14. The learned Additional Sessions Judge held that presence of eye
witnesses namely, PW-1 Shiv Bhajan, PW-2 Swami Deen and
PW-3 Dharma Devi at the time of occurrence was believable and
the defence story that the appellant inflicted fatal injury to the
deceased in exercise of the right of private defence was not
believable. The learned Additional Sessions Judge further held
that the injury sustained by the deceased was sufficient in the
ordinary course of nature to cause death. Accordingly, the charge
under section 302 IPC was held proved beyond all reasonable
doubts against the appellant, consequently, he was convicted and
sentenced under section 302 IPC to under go imprisonment for
life.
15. We have heard the learned counsel for the appellant and the
learned AGA for the respondent and perused the record.
16. The incident in question is almost admitted. As already
mentioned, the appellant has admitted under section 313 CrPC
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that it was he who assaulted the deceased with a hockey stick
and was, thus, author of the fatal injury caused to the deceased.
The time and place of the occurrence as well as the reason for
the incident are also not disputed. The reason for the occurrence
was that the appellant wanted to take back his wife PW-3
6.
Dharma Devi but she was neither agreeable nor her father,
namely, the deceased, agreed to send off her, which annoyed the
appellant and he ultimately assaulted the deceased with a hockey
stick. All the three eye witnesses, namely, PW-1 Shiv Bhajan,
PW-2 Swami Deen and PW-3 Dharma Devi, have not only
supported the prosecution story in the witness box but their
statements could not be shaken on any material particular despite
lengthy cross examination. The ocular testimonies of these three
witnesses find corroboration from the medical evidence given by
PW-4 Dr. Surendra Singh and PW-6 Dr. K.N. Mehrotra. The
learned Additional Sessions Judge appears to have rightly
believed the statements of the aforesaid eye witnesses.
17. In regard to the right of private defence set up by the appellant
in his statement under section 313 CrPC, it may be mentioned
that the injuries of the appellant, as proved by DW-1 Dr. Deo
Kumar Mishra, were almost superficial. DW-1 Dr. Deo Kumar
Mishra has admitted that the appellant’s injuries could be self
inflicted and injury no.1, 2 and 4 were swelling without any
contusion or abrasion etc. In this connection DW-1 Dr. Deo
Kumar Mishra has stated that if someone is assaulted with lathi
or danda, swelling will occur alongwith contusion or abrasion
but he found mere swelling without any injury (without
contusion or abrasion) on the person of the appellant. In view of
these factual aspects of the matter, the appellant’s injuries have
no material relevance on the merits of the case.
18. The law in regard to the right of private defence is well settled.
Nothing is offence which is done in exercise of the right of
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private defence. In view of the provisions of section 99 IPC,
no right of private defence is available in the cases in which
there is time to have recourse to the protection of the public
authorities. In no case, it is permissible for the accused to inflict
more harm than it is necessary to inflict for the purpose of
defence. Section 100 IPC deals with the right of private defence
7.
of body extending to cause death according to which right of
private defence of the body extends under the restrictions
mentioned in the last preceding section, to the voluntary causing
of death or of any other harm to the assailant, if the offence
which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely, –
First.- Such an assault as may reasonably cause the
apprehension that death will otherwise be the consequence
of such assault;
Secondly. – Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the
consequence of such assault;
Thirdly, – An assault with the intention of committing rape;
Fourthly, – An assault with the intention of gratifying
unnatural lust;
Fifthly. – An assault with the intention of kidnapping or
abducting;
Sixthly. – An assault with the intention of wrongfully
confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable
to have recourse to the public authorities for his release.”
19. In order to claim a right of private defence extending to
voluntarily causing of death, the appellant must show that there
were circumstances giving rise to the reasonable ground for
apprehending that either death or grievous hurt would be caused
to him. The instant case needs to be examined in this
8
background.
20. There is no evidence on record that the appellant had any
reasonable apprehension of any assault which could reasonably
cause his death or grievous hurt to him and therefore, he had no
right of private defence of the body extending to cause death of
the deceased. Moreover, the appellant has neither lodged any
FIR nor filed any complaint nor adduced any evidence to prove
8.
the right of private defence. Even nothing material could be
brought on record in support of the story of private defence from
the statements of the prosecution witnesses. Therefore, the story
of right of private defence as set up by the appellant has no
merit.
21. During the hearing, the learned counsel for the appellant did not
challenge the finding of the trial court on merit. The learned
counsel however, submitted that there was even delay of about
19 hours in lodging the FIR. He, further, submitted that from the
facts and circumstances of the case only the offence under
section 304 Part II, IPC was made out. The learned counsel
further submitted that the appellant had made a single blow but
unfortunately the blow proved fatal and the deceased died in the
next morning, therefore, the assault was not with intention or
knowledge to cause death of the deceased. The occurrence took
place without premeditation in a sudden manner on account of
heat of passion in connection with vidai of Smt. Dharma Devi.
22. It is no doubt true that the FIR was lodged after about 19 hours
of the occurrence but it does not appear to be significant keeping
in view the fact that the deceased was taken to the District
Hospital, Raebareli for treatment. If PW-1 Shiv Bhajan instead
of going to the police station to lodge the FIR, decided to save
the life of the deceased and took him to the hospital for treatment
and lodged the FIR after the death of the deceased, the delay in
such situation has no material significance. It may not be out of
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context to mention that neither PW-1 Shiv Bhajan nor any other
person had any means of conveyance at the time of the incident.
All of them were moving on foot. It has also come in evidence
that one passer by arrived at the place of occurrence along with
his bullock-cart on which, PW-1 Shiv Bhajan escorted the
deceased to the village of a relative of the deceased for taking his
cart to escort the deceased to the district hospital, Raebareli. PW-
1 Shiv Bhajan has very clearly stated that he reached the District
9.
Hospital alongwith the deceased at about 3.00 AM on the next
day, i.e. 7.11.1979. According to the Hospital record, the
deceased died in the hospital at 6.40 AM and after the death of
the deceased, PW-1 Shiv Bhajan proceeded to the police station
Dalmau at about 7.00 AM on a hired taxi for lodging the FIR but
the taxi developed some mechanical defect in the passage,
consequently, he reached the police station at about 12.00 noon.
The FIR was lodged within half an hour of reaching the police
station. In view of the fact that the deceased had sustained a
serious head injury and had become unconscious, the
complainant was not expected to leave the deceased uncared of
and proceed to the police station to lodge the FIR. The
complainant Shiv Bhajan appears to have been fully justified in
taking the deceased to the District Hospital, Raebareli for
treatment instead of going to the police station to lodge the FIR.
Despite the delay in lodging the FIR, the prosecution story,
which is almost admitted, does not appear to be concocted in any
way and as such the delay in lodging the FIR has no relevance
and can not be made a basis to discard the prosecution story.
23. The second submission of the learned counsel for the appellant
that no offence under section 302 IPC is made out seems to have
some substance. The learned trial court has examined this aspect
of the matter and held that the head injury sustained by the
deceased was sufficient to cause his death, therefore, the offence
10
under section 302 IPC was made out. It appears that according to
the learned trial court the instant case falls under clause (iii) of
section 300 IPC. The learned counsel for the appellant submitted
in this connection that it was not proper on the part of the trial
court to hold that the offence under section 302 IPC was made
out merely on the ground that according to PW-6 Dr. K.N.
Mehrotra, the injury was sufficient to cause death of the
deceased. It was further required to consider whether or not the
appellant intended to cause the bodily injury sustained by the
10.
deceased and if the appellant intended to cause that injury then
and then alone the medical evidence that the injury was
sufficient in the ordinary course of nature to cause death could
have been relevant otherwise not. The learned counsel further
submitted that the learned trial court has even overlooked the
Exception – 4 of section 300 IPC which was fully applicable.
According to the learned counsel for the appellant, if a case falls
within the purview of clause (iii) of section 300 IPC and is also
covered by any of the exceptions, the act, in that event, would
fall within the category of ‘culpable homicide not amounting to
murder’ and not ‘murder’.
24. In order to appreciate the aforesaid submission of the learned
counsel for the appellant, it seems to be proper to refer to the
provisions of section 299 IPC as well as section 300 IPC.
25. Section 299 IPC defines ‘culpable homicide’, according to
which, whoever causes death by doing an act with the intention
of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of
culpable homicide.
Illustrations: (a) ….
(b) ….
(c) ……
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Explanation 1- A person who causes bodily injury to
another who is labouring under a disorder, disease or
bodily infirmity, and thereby accelerates the death of that
other, shall be deemed to have caused his death.
Explanation 2- Where death is caused by bodily injury,
the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting
to proper remedies and skillful treatment the death might
have been prevented.
11.
Explanation 3- The causing of the death of child in the
mother’s womb is not homicide. But it may amount to
culpable homicide to cause the death of a living child, if
any part of that child has been brought forth, though the
child may not have breathed or been completely born.
26. Section 300 IPC defines ‘murder’, which provides that:
“Except in the cases hereinafter excepted, culpable
homicide is murder, (i) if the act by which the death is
caused is done with the intention of causing death, or
(ii) if it is 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 the harm is caused, or,
(iii) if it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or
(iv) if the person committing the act knows that it is so
imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
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Illustrations: (a)….
(b) ………
(c) ……….
(d) ……….
Exception I- When culpable homicide is not murder-
culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
12.
mistake or accident.
The above exception is subject to the following
provisos :–
First- That the provocations not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly-That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly-That the provocations not given by anything done
in the lawful exercise of the right of private defence.
Explanation-Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.
Illustrations:………
Exception 2-Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the power
given to him by law and causes the death of the person
against whom he is exercising such right of defence
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without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such
defence.
Exception 3-Culpable homicide is not murder if the
offender, being a public servant or aiding a public
servant acting or the advancement of public justice,
exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be
lawful and necessary for the due discharge of his duty as
such public servant and without ill-will towards the
person whose death is caused.
13.
Exception 4-Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a
cruel or unusual manner.
Explanation-It is immaterial in such cases which party
offers the provocation or commits the first assault.
Exception 5-Culpable homicide is not murder when the
person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death
with his own consent.
Illustration:……….”
27. In the case of State of A.P. vs. Rayavarapu Punnayya, (1976) 4
SCC 382, the Apex Court observed as follows:
“12. In the scheme of the Penal Code, “culpable
homicides” 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
14amounting to murder”. For the purpose of fixing
punishment, proportionate to the gravity of this generic
offence, the Code practically recognises 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
14.
degree is punishable under the second part of section
304“.
28. Placing strong reliance on the aforesaid decision, the Apex
Court in the case of Abdul Waheed Khan v. State of A.P., (2002)
7 SCC 175, observed as follows at page 184:
“13. 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
15the ambit of this clause. This aspect of Clause (2) is
borne out by illustration (b) appended to section 300.
14. 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,
15.
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 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
16
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.
15. 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 Singh v. State of Kerala is an apt illustration of
this point.
16. In Virsa Singh v. State of Punjab, 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
16.
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.
17. The ingredients of clause “thirdly” of section 300 IPC
were brought out by the illustrious Judge in his terse
language as follows:(AIR p.467, para 12)
“12. To put it shortly, the prosecution must prove
17
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
17.
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.
18. The learned Judge explained the third ingredient in
the following words (at p. 468):(AIR para 16)
“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
18
that he intended to inflict it. Whether he knew of
its seriousness, or intended serious consequences,
is neither here nor there. The question, so far as
the intention is concerned, is not whether he
intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he
intended to inflict the injury in question; and once
the existence of the injury is proved the intention
to cause it will be presumed unless the evidence or
the circumstances warrant an opposite
conclusion.”
19. These observations of Vivian Bose, J. have become
locus classicus. The test laid down by Virsa Singh case
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
18.
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 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.
20. Thus, according to the rule laid down in Virsa Singh
case even if the intention of the 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.
19
Illustration (c) appended to section 300 clearly brings
out this point.
21. 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.
19.
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 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.”
29. The aforesaid principles have been consistently applied by the
Apex Court in several decisions. Reference in this regard may be
made to the decision of the Apex Court in Ruli Ram v. State of
Haryana (2002) 7 SCC 691, Augustine Saldanha v. State of
Karnataka (2003) 10 SCC 472, State of U.P. v. Virendra Prasad
(2004) 9 SCC 37, Chacko v.State of Kerala (2004) 12 SCC 269
and S.N. Bhadolkar v. State of Maharashtra (2005) 9 SCC 71.
20
30. The aforesaid decisions have almost settled the legal position
involved in this case. Section 299 defines culpable homicide as
the act of causing death; (i) with the intention of causing death or
(ii) with the intention of causing such bodily injury as is likely to
cause death or (iii) with the knowledge that such act is likely to
cause death. The bare reading of the section makes it crystal
clear that the first and the second clause of the section refer to
intention apart from the knowledge and the third clause refers to
knowledge alone and not intention. Both the expression “intent”
and “knowledge” postulate the existence of a positive mental
attitude which is of different degrees. The mental element is
culpable homicide i.e. mental attitude towards the consequences
of conduct is one of intention and knowledge. If that is caused in
any of the aforesaid three circumstances, the offence of culpable
homicide is said to have been committed. Section 300 IPC,
however, deals with murder although there is no clear definition
of murder provided in section 300, IPC. It has been repeatedly
held by the Apex Court that culpable homicide is the genus and
murder is species and that all murders are culpable homicide but
20.
not vice versa. Section 300 IPC further provides for the
exceptions which will constitute culpable homicide not
amounting to murder and punishable under section 304. When
there is intent and knowledge then the same would be a case of
section 304 Part I and if it is only a case of knowledge and not
the intention to cause murder and bodily injury, then the same
would be a case of section 304 Part II.
31. The instant case needs to be examined in the light of the
aforesaid legal principles. The incident in question did not take
place in a preplanned manner. In fact according to the
statements of the prosecution witnesses, the occurrence took
place without premeditation in a sudden manner on account of
heat of passion in connection with the request of the appellant
21
for vidai of his wife Smt. Dharma Devi (PW-3). The appellant
made a single hockey stick blow on the deceased without any
repetition and fled away immediately after hitting the blow. The
appellant, according to the prosecution evidence, had stayed in
the house of PW-1 Shiv Bhajan in the preceding night where the
deceased and his daughter PW-3 Smt. Dharma Devi had also
stayed and an exchange of hot words also took place there in
connection with the vidai. But at that time the appellant did not
loose the temper nor made any attempt to assault on the
deceased. It may also be mentioned that the appellant, the
deceased, PW-1 Shiv Bhajan and PW-3 Smt. Dharma Devi all
proceeded together from the house of PW-1 Shiv Bhajan on the
date of occurrence. But the appellant again insisted for vidai of
his wife while they were on way but the deceased told that it was
not possible to send off PW-3 Smt. Dharma Devi as she was not
willing to go and live with the appellant. At this juncture too, an
exchange of hot words took place between the appellant and the
deceased, which caused a sudden annoyance to the appellant and
he accordingly assaulted the deceased with a single hockey stick
blow. In these circumstances, it can easily be inferred that in the
21.
instant case both the intention and the knowledge are lacking. It
appears that the appellant intended to inflict some injury to the
deceased but unfortunately the injury inflicted by him proved
fatal. The learned Sessions Judge was of the view that the
offence under section 302 IPC was made out because the injury
sustained by the deceased was sufficient in the ordinary course
of nature to cause death. In our opinion, this view of the learned
Sessions Judge was not correct. In order to constitute the
offence of murder in the light of the provisions of section 300(3)
IPC it is not only necessary to prove that the bodily injury
inflicted was sufficient in the ordinary course of nature to cause
death but it is also necessary to prove that the accused intended
22
to cause the particular injury. If the intention to cause the
particular injury is lacking in any case, the accused can not be
held guilty of committing murder only on the basis that the
injury inflicted by him was sufficient in the ordinary course of
nature to cause death. Therefore, the finding of the learned
Sessions Judge that the offence under section 302 IPC was made
out on the ground that the injury inflicted by the appellant was
sufficient in the ordinary course of nature to cause death, suffers
from material illegality and can not be upheld. It may also be
mentioned that the learned Sessions Judge has completely
overlooked the Exception 4 of section 300 IPC. According to
that Exception culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner. The
facts of the instant case, as extracted hereinbefore squarely falls
within the Exception IV of section 300 IPC and as such from the
proved facts no offence under section 302 IPC is made out
against the appellant. In our view, from the facts and evidence
on record only the offence under section 304 Part II IPC is made
out.
22.
32. Accordingly, the appellant is liable to be convicted and
sentenced under section 304 Part II, IPC instead of section 302
IPC.
33. In view of the fact that the occurrence is of the year 1981 and
the appellant had acted on account of a sudden quarrel without
premeditation and had no criminal background, the ends of
justice would be met if the appellant is sentenced under section
304 Part II of the Indian Penal Code to undergo rigorous
imprisonment of five year only.
34. The appeal is, therefore, partly allowed. The conviction and
sentence recorded against the appellant under section 302 IPC
23
are set aside. The appellant Bhagwati is however convicted and
sentenced under section 304 Part II of the Indian Penal Code to
undergo rigorous imprisonment of five year.
35. The Chief Judicial Magistrate concerned is directed to take the
appellant in custody and send him to jail to serve out the
sentence awarded and send the compliance report to this Court
within a month.
36. Let a copy of this judgment along with lower court record be
transmitted to the court concerned for compliance.
Dated:-
RKSh