INDIAN     PENAL     CODE       [Sections 299-304]

Section 299                 Culpable homicide

• 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

Comments by DLA on section 299

Analysis of section 299

What is culpable homicide?

• Section 299 defines culpable homicide as the act of causing death with one of three intentions:

(a) of causing death,

(b) of causing such bodily injury as is likely to cause death,

(c) of doing something which the accused knows to be likely to cause death.

• It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another.

• The knowledge must have reference to the particular circumstances in which the accused is placed.

• The intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive.

Is a man guilty of culpable homicide if he shoots at the stump of a tree with no man around?

Ans:  If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being.

Is a man guilty of culpable homicide if he shoots at a living human being believing him to be dead?

Ans.:  The intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body.

There are three illustrations and three explanations to section 299.

Illustration (a) to section 299

• A lays sticks and turf over a pit
  • with the intention of thereby causing death
  • or with the knowledge that death is likely to be thereby caused
• Z believing the ground to be firm
  • treads on it, falls in and is killed
• A has committed the offence of culpable homicide

The first illustration shows that it is not necessary that the intention to cause death should be towards any particular person. It could be quite general in nature. Here, the intention is to cause death of whoever comes that way and walks on the trap.

Illustration (b)

• A knows Z to be behind a bush
  • B does not know it
• A intending to cause or knowing it likely to cause Z’s death
  • induces B to fire at the bush
• B fires and kills Z
• Here B may be guilty of no offence
  • but A has committed the offence of culpable homicide

The second illustration holds an abettor guilty of committing culpable homicide. In the absence of this illustration, A would be guilty of abetment only, but by force of this illustration, he is to be held guilty of committing culpable homicide.

Illustration (c)

• A, by shooting at a fowl with intent to kill and steal it
  • kills B who is behind a bush, A not knowing that he was there

• Here, although A was doing an unlawful act,
• he was not guilty of culpable homicide
  • as he did not intend to kill B or to cause death
  • by doing an act that he knew was likely to cause death

Explanation 1

• A person who causes bodily injury to another
  • who is labouring under a disorder, disease or bodily infirmity
• and thereby accelerates death of that other
  • shall be deemed to have caused his death

Explanation 2

• Where death is caused by bodily injury:
• person who causes bodily injury shall be deemed to have caused the death
  • although by resorting to proper remedies and skilful treatment
  • death might have been prevented

Explanation 3

• Causing of death of child in 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

Section 300                 Murder

• Except in cases hereinafter excepted:
• culpable homicide is murder

First

•  if the act by which death is caused
  • is done with the intention of causing death

Secondly

• if the act by which death is caused
  • is done with the intention of causing such bodily injury
  • as the offender knows likely to cause death of the person to whom the harm is caused

Thirdly 

• if the act by which death is caused
  • 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

Fourthly 

• 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

Comments by DLA on section 300

Analysis of clause “secondly”:

The distinguishing feature of the mens rea requisite under clause “secondly” 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.

The ‘intention to cause death’ is not an essential requirement of this clause. 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.

It requires both; some intention and some knowledge.

Instances of cases falling under clause (2) of Section 300:   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 rupture of the liver or spleen or failure of the heart.

Analysis of clause “thirdly”:

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.

• 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.

Main requirements for application of clause “thirdly”?

• Subjective: The accused had the intention to cause the bodily injury actually found to be present

• Objective: The injury actually caused is sufficient in the ordinary course of nature to cause death.

Once these are established:

• It does not matter that there was no intention to cause death.
• It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature .
• It does not even matter that there was no knowledge that an act of that kind will be likely to cause death.

Analysis of clause “fourthly”:

Clause (4) of Section 300 would be applicable where 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.

Correspondence between the three clauses of section 299 with the four clauses of section 300

Clause (a) of Section 299 corresponds with clause (1) of Section 300. Both require intention to cause death.

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. Both require intention to cause bodily injury. 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. 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.

Clause (c) of Section 299 corresponds with clause (4) of Section 300. Both require knowledge of the probability of the act causing death.

There are four illustrations to section 300, each dealing with one limb of the section.

Illustration (a) to section 300

• A shoots Z with the intention of killing him
  • Z dies in consequence
  • A commits murder

This illustration illustrates the first limb where there is intention to cause death.

Illustration (b)

• A knowing that Z is labouring under such a disease
  • that a blow is likely to cause his death
  • strikes him with the intention of causing bodily injury
  • Z dies in consequence of the blow
• A is guilty of murder
  • although blow might not have been sufficient in ordinary course of nature
  • to cause death of a person in a sound state of health

This illustration illustrates the “secondly” of section 300.

Illustration (c)

• A intentionally gives Z a sword-cut or club-wound
  • sufficient to cause death of a man in the ordinary course of nature
  • Z dies in consequence
• Here, A is guilty of murder
  • although he may not have intended to cause Z’s death

This illustration illustrates the “thirdly” of section 300.

Illustration (d)

• A without any excuse fires a loaded cannon
  • into a crowd of persons and kills one of them
• A is guilty of murder
  • although he had no premeditated design to kill any particular individual

This illustration illustrates the “fourthly” of section 300.

There are five exceptions to section 300, each of which takes away a case from the offence of “murder” and makes it a case of

“culpable homicide not amounting to murder”.

Exception 1                 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 death of the person who gave the provocation or
  • causes death of any other person by mistake or accident

Comments by DLA on Exception 1

Essential ingredients of Exception 1

(1) The deceased must have given provocation to the accused.

(2) The provocation must be grave.

(3) The provocation must be sudden.

(4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control.

(5) He should have killed the deceased during the continuance of the deprivation of the power of self-control.

(6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

What is the test of grave and sudden provocation?

• The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control.
• Thus, it is the test of a reasonable man.
• The test is whether a reasonable person placed in the same position as the accused was, would have reacted to the provocation in the same manner in which the accused did.

Is there any uniform standard of reasonableness?

No, what a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs.

Whether words and gestures alone, unaccompanied by acts, may also cause grave and sudden provocation?

Yes, in India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code.

Can the mental background created by the previous act of the victim be taken into consideration?

Yes, the mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence

What is the effect of time lag between the act of provocation and the commission of offence?

The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after passion had cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation.

Provisos to this exception:

First

• The provocation should not have been sought or voluntarily provoked by the offender
  • as an excuse for killing or doing harm to any person

Secondly

• The provocation should not have been given
  • by anything done in obedience to law or
  • by a public servant in lawful exercise of powers of such public servant

Thirdly

• The provocation should not have been given
  • by anything done in lawful exercise of the right of private defence

Illustration (a)

• A, under influence of passion excited by a provocation given by Z
  • intentionally kills Y, Z’s child
• This is murder in as much as
  • the provocation was not given by the child and
  • death of the child was not caused by accident or misfortune in doing an act caused by the provocation

Illustration (c)

• A is lawfully arrested by Z, a bailiff
  • A is excited to sudden and violent passion by the arrest, and kills Z
• This is murder
  • in as much as the provocation was given by a thing
  • done by a public servant in exercise of his powers

Exception 2

• Culpable homicide is not murder
• if the offender
  • in exercise in good faith of right of private defence of person or property
  • exceeds the power given to him by law and
  • causes death of person against whom he is exercising right of defence
    • without premeditation and
    • without any intention of doing more harm than is necessary for such defence

Illustration

• Z attempts to horsewhip A
  • not in such a manner as to cause grievous hurt to A
• A draws out a pistol but Z persists in the assault
• A believing in good faith that
  • he can by no other means prevent himself from being horsewhipped
  • shoots Z dead
• A has not committed murder
  • but only culpable homicide

Exception 3

• Culpable homicide is not murder
  • if the offender, being a public servant
  • 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 due discharge of his duty as such public servant and
  • without ill-will towards the person whose death is caused

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
  • 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 provocation or commits the first assault

Comments by DLA on Exception 4

Essential ingredients of Exception 4

In whatever way the dispute might have started, the subsequent conduct of both parties puts them, in respect of guilt, upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side.

The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side.

There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.

Heat of passion requires that there must be no time for the passions to cool down.

For application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner.

The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.

Comparison between Exception 1 and Exception 4

Exception 4 is founded upon the same principle as Exception 1, for in both there is absence of premeditation. But, while in case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do.

There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation.

In whatever way the dispute might have started, the subsequent conduct of both parties puts them, in respect of guilt, upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side.

The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side.

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

• A, by instigation, voluntarily causes
  • Z, a person under eighteen years of age to commit suicide
• Here, on account of Z’s youth
  • he was incapable of giving consent to his own death
• A has therefore abetted murder

Section 301                 Death of person other than intended

• If a person by doing anything which he intends or knows likely to cause death
  • commits culpable homicide by causing death of any person
  • whose death he neither intends nor knows himself likely to cause
• the culpable homicide committed by the offender
  • is of the description of which it would have been
  • if he had caused death of the person
    • whose death he intended or knew himself likely to cause

Section 302                 Punishment for murder

• Whoever commits murder
  • shall be punished with death or imprisonment for life and fine

Comments by DLA on section 302

When does culpable homicide become murder?

• In the scheme of the Penal Code, ‘culpable homicide’ is the genus and ‘murder’ is its species.

• 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’.

“Judgment writing” and “approach of a Court” on culpable homicide and murder:

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.

(1) 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.

(2) 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 Section 299.

(3) If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 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 Section 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 Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable.

• If answer to this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under Section 304, Penal Code. Else, it is murder, punishable under section 302.

Section 303                 Punishment for murder by life-convict

• Whoever being under sentence of imprisonment for life
  • commits murder
  • shall be punished with death

Note:

• This section has been struck off by the Supreme Court in 1982, holding it unconstitutional in the case of Mithu v. State of Punjab.

Section 304                 Punishment for culpable homicide not amounting to murder

• Whoever commits culpable homicide not amounting to murder
• shall be punished
  • with imprisonment for life or imprisonment of upto ten years and fine
    • if the act by which death is caused is done
    • with the intention of causing death or
    • with the intention of causing such bodily injury as is likely to cause death or
  • with imprisonment of upto ten years or fine or both
    • if the act is done with the knowledge that it is likely to cause death
    • but without any intention to cause death or to cause such bodily injury as is likely to cause death

Comments by DLA on section 304

Three types of punishment for culpable homicide

For the purpose of fixing punishment, 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 degree is punishable under the second part of Section 304.

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.

 

CASE   LAW   ON    SECTIONS    299 – 304

1.   Palani Goundan               v.              Emperor                             [1919 Mad]
2.   Kapur Singh                      v.              State of PEPSU                 [1956 SC]
3.   In   Re   Thavamani                                                                        [1943 Mad]
4.  Rawalpenta Venkalu        v.              State of Hyderabad           [1956 SC]
5.  Virsa Singh                         v.             State of Punjab                   [1958 SC]
6.  State  of  A.P.                     v.              Rayavarapu  Punnayya     [1977 SC]
7.  Emperor                             v.              Mt.   Dhirajia                      [1940 All.]
8.  Gyarsibai                            v.              The State                             [1953 M.B.]
9.  K. M.  Nanavati                 v.              State of Maharashtra         [1962 SC]
10.  Ghapoo   Yadav                 v.              State  of   M.P.                      [2003  SC]
11. Bhagwan Dass                    v.              State (NCT of Delhi)           [2011 SC]
12. Jai Prakash                         v.              State (Delhi Administration)        [1991  SC]
13. Gudar Dusadh                   v.             State of Bihar    [1972 SC]
14. Mahesh Balmiki                v.             State of M.P.         [2000  SC]
15. Dhupa Chamar                  v.            State Of Bihar        [2002  SC]

 **Each case is condensed by DLA retaining the original language, the facts and the ratio decidendi

 

Case Law on section 299 IPC

                        Palani  Goundan         v.         Emperor         [1919 Mad]

WALLIS, C.J. – The accused was convicted of murder by the Sessions Judge of Coimbatore. He appealed to this Court, which took a different view of the facts from that taken by the learned Sessions Judge and has referred to us the question whether on the facts as found by the learned Judges who composed it, the accused has in law committed the offence of murder. Napier, J. inclined to the view that he had: Sadasiva Ayyar, J., thought he had not.

The facts as found are these:

The accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He believed her to be dead and in order to lay the foundation for a false defence of suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a rope. In fact the first blow was not a fatal one and the cause of death was asphyxiation by hanging which was the act of the accused.

By English Law this would clearly not be murder but man slaughter on the general principles of Common Law. In India every offence is defined both as to what must be done and with what intention it must be done by the section of the Penal Code which creates it a crime. There are certain general exceptions laid down in chapter IV, but none of them fits the present case. We must therefore turn to the defining section 299.

Section 299 defines culpable homicide as the act of causing death with one of three intentions:

(a) of causing death,

(b) of causing such bodily injury as is likely to cause death,

(c) of doing something which the accused knows to be likely to cause death.

It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. “Causing death” may be paraphrased as putting an end to human life: and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to a human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man cuts the head off from a human body, he does an act which he knows will put an end to life, if it exists. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide.

This is because though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. Complications may arise when it is arguable that the two acts of the accused should be treated as being really one transaction.

Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can of course be punished both for his original assault on his wife and for his attempt to create false evidence by hanging her. These, however, are matters for the consideration and determination of the referring Bench.

[When the case came on again for hearing before the Division Bench, the court convicted the accused of grievous hurt under section 326, Indian Penal Code]

* * * * *

 

Case Law on section 299 IPC

                        Kapur Singh         v.          State of PEPSU          [1956 SC]

Special leave was granted to the appellant limited to the question of sentence only.

About an year before the date of the occurrence, Bachan Singh, son of the deceased caused a severe injury on the leg of Pritam Singh, son of the appellant, resulting in the amputation of his leg. The appellant harboured a grudge against the father and son since that time and he was trying to take revenge on a suitable opportunity presenting itself. That opportunity came on 30th September, 1952 when the appellant encountered the deceased, and he and his companion, one Chand Singh, were responsible for the occurrence. Chand Singh held the deceased by the head and the appellant inflicted as many as 18 injuries on the arms and legs of the deceased with a gandasa. It is significant that out of all the injuries which were thus inflicted none was inflicted on a vital part of the body.

The appellant absconded and his companion was in the meantime convicted of an offence under Section 302 and a sentence of transportation for life was imposed on him, which was confirmed by the High Court. The appellant was arrested thereafter and trial resulted in his conviction under Section 302. The learned Sessions Judge, awarded him a sentence of death subject to confirmation by the High Court. The High Court, in due course, confirmed the death sentence.

The motive which actuated the appellant in committing this crime was to wreak his vengeance on the family of Bachan Singh. It appears that the appellant intended to inflict on the arms and legs of the deceased such injuries as would result in amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for what his son, Bachan Singh, had done to his own son Pritam Singh. The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of the case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of injuries.

We therefore feel that the proper section under which the appellant should have been convicted was Section 304(1) and not Section 302. We, accordingly, alter the conviction of the Appellant from that under Section 302 to one under Section 304(1) and instead of the sentence of death which has been awarded to him, which we hereby set aside, we award him the sentence of transportation for life.

************

 

Case Law on section 300 IPC

In   Re   Thavamani        [1943 Mad]

The appellant here was accused 2 prosecuted before the learned Sessions Judge of Ramnad for the murder of a woman named Meenakshi Achi on the evening of the 26^th September last. The deceased was admittedly murdered in her flower garden about6 11/2 furlongs away from the village. Her dead body was found on 27th September in a well in the garden. Two persons were prosecuted for the murder. Accused 1 who was eventually acquitted, was the gardener employed in the garden. Accused 2 was an acquaintance of his, who was in need of money at the time. There is no direct evidence of from the post mortem certificate or the testimony of the doctor as to the cause of death.

The body when found had marks of three punctured wounds upon the head; but those wounds by themselves according to the doctor would not be sufficient to cause death. The principal evidence upon which accused 2 was convicted comes from his own conduct. He has given a statement to the police as a result of which he has informed them of the existence of P.W. 15, who confirms his story that the two accused sold to him (P.W. 15) part of a chain which had been worn by the deceased at the time of her death. The evidence of P.W.15 and P.W. 16 taken together shows that the proceeds of the sale of this portion of the chain were divided between the two accused.

There is also a confessional statement made by accused 2 before the Taluk Magistrate of Tirupatttur. He explains how he was induced by accused 1 to assist accused in the killing of the deceased. After the first attack had been made upon the deceased he (Accused 2) prevented her from leaving the garden and then seized her legs and held her tight while, according to the confession, the murder was completed. After she had died, Accused 1 and 2 threw the body into the well. The significance of this confession which has been so signally confirmed by the discovery of P.W. 15 and P.W. 16 and the chain which was sold to the former, as proving a case of the commission of some offence against the appellant, has not been challenged in argument before us.

But it is argued that the medical evidence taken in conjunction with the confession shows that there could not have been any intention on the part of accused 2 to commit murder and therefore he cannot be found guilty under section 302, Penal Code. Great stress is laid upon the statement in the confession that the deceased had died and that her dead body had been thrown into the well. The doctor on the other hand gives evidence that the only marks of external injury which he saw were of injuries which were insufficient to cause death. It is accordingly argued that accused 2 was under a misapprehension when he thought that the deceased was dead and that the blows which accused 1 with his assistance had struck at the deceased had not therefore caused her death.

Whatever therefore may have been the intention of the accused in striking those blows, that intention had not been effected. The action of the appellant and accused 1 in throwing the body into the well could not possibly be in pursuance of an intention to cause her death, as they already believed that she was dead.

Reliance in support of this position is placed upon the decision in 42 Mad. 547. The Sessions Judge however has refused to follow that ruling and has followed instead the later ruling reported in 57 Mad. 158. It is true that in this later case there was no definite plea by the accused that at the time when he put the body of the deceased upon the railway line he thought she was dead, whereas here according to the argument the confession does contain a statement equivalent to the expression of a belief that the deceased was already dead when the body was thrown into the well. But that is not the most important point of distinction between 42 Mad. 547 and 57 Mad. 158 at p. 171. The main point of distinction between the two cases is this, that in 42 Mad. 547 there was never at any time an intention to cause death. The original intention was only to cause injury. The second intention was only to dispose of a supposedly dead body in a way convenient for the defence which the accused was about to set up.

In 57 Mad. 158, however, and, in the present case, it is clear that there was at the beginning an intention to cause death. This intention was apparently completely carried into effect but in fact was not. Even if the intention at the second stage of the transaction had been merely to dispose of a dead body, as is pointed out in 57 Mad. 158, the two phases of the same transaction are so closely connected in time and purpose that they must be considered as parts of the same transaction. The result of the actions of the accused taken as a whole clearly is to carry out the intention to kill with which they began to act.

It seems to us that there is no satisfactory reason for distinguishing facts of the present case from the ruling in 57 Mad. 158 and that the learned Sessions Judge rightly relied upon that ruling in holding that, even if at the time when the woman was thrown into the well she was alive, and even if the appellant then thought her dead he would be guilty of murder. The conviction of the appellant for murder must therefore stand. There are clearly no extenuating circumstances of any kind in this case and the sentence of death is the only one appropriate to the circumstances. We accordingly confirm the sentence and dismiss the appeal.

*****

 

Case Law on section 300, firstly

                        Rawalpenta Venkalu       v.    State of Hyderabad       [1956 SC]

Rawalpenta Venkalu and Bodla Ram Narsiah have been sentenced to death under Section 302 for the murder of Md. Moinuddin, Banjardar of Mohiuddinpur on 18-2-1953.

The prosecution case, shortly stated, was that on the night between the 18th and 19-2-1953 the two appellants along with three others (acquitted by the trial Judge) in pursuance of a conspiracy to commit the murder of Md. Moinuddin had set fire to the single room hut in which he was sleeping, after locking the door of the room from outside.

PW 8, an old servant who was sleeping in front of the cottage outside the room occupied by the deceased, was awakened by the noise of the locking of the door from outside. Just at that time Moinuddin also called out for him from inside and asked him to open the door. PW 8 replied that he could not do so as he found the door locked from outside. Three other employees of Moinuddin, who were watching his harvest about fifty paces away, were also called out by him. When they came near the cottage, they were assaulted by the culprits.

The two appellants then set fire to the cottage and the employees of Moinuddin were kept at bay by the superior force of the accused and their associates. Those employees naturally, therefore, went towards the main habitation in the village shouting for help. When the villagers came, the appellants and others prevented them from going to the rescue of the helpless inmate of the cottage by throwing dust in their eyes, literally speaking, and by the free use of their sticks.

On the 23rd February the appellants are said to have made their confessional statements. Those confessions were recorded by a munsif magistrate.

It will be seen that except for the single difference between the two statements as to who lighted the match stick, on other points the two statements agree.

But the case against the appellant does not depend upon those confessional statements. The prosecution has examined as many as 19 witnesses, of whom PWs 4, 7 and 8 saw the occurrence from the beginning to the end.

It has been found by the courts below that there was longstanding dispute between the deceased and the family of the second appellant over land.

Both of them have argued in the first place that the confessional statement made by both the accused was not admissible in evidence, firstly, because it had not been voluntarily made and secondly, because the one contradicts the other. It has also been argued that having been retracted at the sessions stage, the confessions are wholly unreliable.

In this connection it is enough to point out that the learned Judges of the High Court have in the first instance discussed the positive evidence led by the prosecution to bring the charge home to the accused. They have relied upon the evidence of the two eyewitnesses, namely, PWs 4 and 7. We do not find any good reasons for reopening the findings of the courts below that the oral testimony adduced in this case was by itself sufficient to prove the guilt of the appellants. After discussing and accepting the testimony of witnesses the High Court observed as follows at the end of its judgment:

It is to be remarked that these confessional statements were not retracted until the accused were examined by the Sessions Judge under Section 342, CrPC. The first appellant, when questioned about the confession, answered that he gave the statement “under police pressure”. He said he was beaten by the police for three days. But that is clearly a lie because he was, as already indicated, arrested on the 22nd February and the very next day his confessional statement was recorded. The second appellant, when similarly questioned, answered as follows: I do not know whether I had given any statement, because I was severely beaten and then I had fever.

It is clear that neither of these two appellants has been able to point to any circumstance  which could lead to the conclusion that these confessional statements had been extorted from them. But it is not necessary further to examine the force and effect of these confessional statements because the direct testimony against the appellants is clear and cogent enough to bring the charge home to them. The intention to kill Moinuddin is clear from the fact deposed to by the prosecution witnesses that the accused took care to lock the door from outside so that his servant PW 8 sleeping outside could be of no help to the deceased who had thus been trapped in his own cottage.

Furthermore, when the villagers were roused from their sleep and were proceeding towards the cottage which was on fire, they were prevented from rendering any effective help to the helpless man, by use of force against them by the accused. The appellants took active steps to prevent the villagers from bringing any succour to the man who was being burnt alive.

It is clear from the evidence that each one of the two appellants actively contributed to the burning of the cottage while the man had been trapped inside. Each one of them therefore severally and in pursuance of the common intention brought about the same results by his own act.  It is clear therefore that though Section 34 is not added to Section 302, the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention to put an end to the life of Moinuddin.

There is clear evidence that both accused lighted a match stick and set fire to the cottage and each one of them therefore is clearly liable for the offence of murder. Their subsequent acts in repelling all attempts at bringing succour to the trapped person clearly show their common intention of bringing about the same result, namely, the death of Moinuddin. The circumstances disclosed in the evidence further point to the conclusion that the offence was committed after a pre-concerted plan to set fire to the cottage after the man had as usual occupied the room and had gone to sleep.

For the reasons given above we do not find any reasons for differing from the conclusions arrived at by the courts below. The appeals are accordingly dismissed.

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 Case Law on section 300 “thirdly”

                        Virsa Singh           v.           State of Punjab          [1958 SC]

VIVIAN BOSE, J. – The appellant Virsa Singh has been sentenced to imprisonment for life under Section 302 of the Indian Penal Code for the murder of one Khem Singh.

There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was “a punctured wound on the left side of the abdominal wall.” He also said that “Three coils of intestines were coming out of the wound.”

The incident occurred about 8 p.m. on 13-7-1955. Khem Singh died about 5 p.m. the following day.

The doctor who conducted the post-mortem described the injury as sufficient to cause death in the ordinary course of nature.

The learned Sessions Judge found that the appellant was 21 or 22 years old and said –

When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer.

Based on those facts, he said that the case fell under Section 300 “thirdly” and so he convicted under Section 302 of the Indian Penal Code.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 “thirdly” was quoted:

If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the “thirdly” would be unnecessary because the act would fall under the first part of the section: if the act by which the death is caused is done with the intention of causing death.

In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: If it is done with the intention of causing bodily injury to any person.

It must, of course, first be found that bodily injury was caused and the nature of the injury must be established: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.

Once that is found, the enquiry shifts to the next clause –

And the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play.

But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining— “and the bodily injury intended to be inflicted” is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.

In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart.

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.

 Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.

Observations in a decision of Lord Goddard in R. v. Steane [(1947):

No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.

That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places.

 In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.

The 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 circumstances justifies such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law.

Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be, but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture.

The appeal is dismissed.

* * * * *

 

Case Law on section 300 “thirdly”

                        State  of  A.P.      v.     Rayavarapu  Punnayya        [1977 SC]

Facts of the case

On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, 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. Al and A2 went towards the Coffee Hotel, situated near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry.

On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, 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 deceased succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid. Autopsy was conducted by Dr Sarojini 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.

In the scheme of the Penal Code, ‘culpable homicide’ is the genus and ‘murder’ is its species. 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 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.

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 minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299	Section 300
A person commits culpable homicide if the act by which the death is caused is done –	Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done –
Intention   (a) with the intention of causing death	Intention   (1) with the intention of causing death
Intention (b) with the intention of causing such bodily injury as is likely to cause death	Intention (2) 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 (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death
Knowledge (c) with the knowledge that the act is likely to cause death	Knowledge (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or, diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death was intentionally given.

In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, a 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.

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.

According to the rule laid down in Virsa Singh case, even if the intention of accused was limited to 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) to Section 300 clearly brings out this point.

Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general – as distinguished from a particular person or persons – 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.

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 Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 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 Section 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 Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of Section 304.

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 Al and A2 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 of clause (a) of Section 299 or clause (1) of Section 300. It is nobody’s case that the instant case falls within clause (4) of Section 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.

To say that the attack was not premeditated or pre-planned is not only factually incorrect. The best person to speak about haemorrhage and the cause of the death was Dr P. S. Sarojini who had conducted the autopsy. She testified that the cause of death of the deceased was “shock and haemorrhage due to multiple injuries”.

Modi’s book on Medical Jurisprudence and Toxicology: “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”.

The crux of the matter is, whether the facts established bring the case within clause thirdly of Section 300. This question further narrows down into a consideration of the twofold issue:

• Whether the bodily injuries found on the deceased were intentionally inflicted by the accused?
• If ‘so, were they sufficient to cause death in the ordinary course of nature?

If both these elements are satisfactorily established, the offence will be ‘murder’, irrespective of the fact whether an intention on the part of the deceased to cause death, had or had not been proved.

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. The accused had, therefore, a motive to beat the deceased. 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 noire, 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 was a menacing retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. Maybe, 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 Section 300 had been cogently and convincingly established.

This takes us to the second element of clause (3). Dr Sarojini, 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.

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.

The ratio of Anda v. State of Rajasthan 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 case, here also, the aim of the assailants 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. While in Anda 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 thirdly of Section 300. The expression “bodily injury” in clause thirdly 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 already 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 fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was ‘murder’.

For all the foregoing reasons, we are of the opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34 to that under Section 304, Part II, Penal Code.

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Case Law on section 300 “fourthly”

                    Emperor      v.     Mt.   Dhirajia        [1940 All.]

The appellant is a young woman of 20 who was tried for murder by the Sessions Judge of Benares and who was tried at the same time for attempted suicide by a jury.

The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and then he reached a point close to the railway line he saw making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury.

Upon these facts Mr. Dhirajia was, as we have said, charged with the murder of her baby and with an attempt to commit suicide herself. At that stage it is desirable that we should look at her own statements. She has put forward her version of the affair on these separate occasions: first by a statement in the nature of the confession; secondly, before the committing Magistrate, and thirdly in the Court of the Sessions Judge. The first two of these are identical and we need only, therefore, actually discuss the one before the Magistrate. She was asked:

Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to commit suicide?

This was her answer:

There had been a quarrel in my house for three or four days. My husband threatened to beat me. Thereupon I fled away. He followed me. When I saw my husband coming after me, I through fear jumped into the well.

We are satisfied upon the fact the story told by the appellant in her own statement before the Magistrate is in substance the true version of what happened. It is, indeed, supported by the prosecution evidence itself because one cannot read her husband’s evidence without coming to the conclusion that the woman was in a panic when she saw her husband coming after her.

And we believe that what she did, she did in terror for the purpose of escaping from her husband. Now, upon those facts, what we have to consider – and what we think the learned Sessions Judge ought to have considered – is, whether this satisfied the charges of murder and of attempted suicide, and if not what the woman has been guilty of. This raises questions which are not altogether free from difficulty and are of some interest. To take first the charge of murder, as we all know, according to the scheme of the Penal Code, ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300, Penal Code, is designated ‘murder’ or whether it falls within the residue of cases which are covered by Section 304 and are designated ‘culpable homicide not amounting to murder.’ In order to ascertain whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says:

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.

In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia an intention to cause the death of her baby. We are satisfied that no such intention was ever present in her mind. Indeed we think there was no room in her mind for any such intention having regard to the panic that she was in. But we have to consider whether what she did, she did with the ‘knowledge’ that she was likely by such act to cause death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that we cannot in this case, having regard to all the circumstances, attribute to this unfortunate woman the ‘knowledge’ of anything at all at that particular moment. We desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on behalf of the Government, has very properly and with great ability represented the appellant herself who was not otherwise represented. We are grateful for his argument from which we have derived great assistance. The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had no ‘intention’ but she could have had no knowledge either. We regret that we are unable to go as far as this. ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to be a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us – treating Mt. Dhirajia as a sane person, which we are bound to do – to conclude that she could possibly have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that baby’s death. We do not think we can.

We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. We have been pressed with cases by Mr. Saran in which when blows have been struck, it has been discussed whether knowledge of the likely consequence of those blows can be attributed to the striker. But we venture to think that such cases as these are fundamentally different from the case before us. A blow is not per se a necessarily fatal act, especially if the blow be given with the fist or with one of the less lethal weapons. This is a question of degree, a question of force, a question of position and so forth, and therefore in these cases there is ample room for argument as to whether in any particular case, having regard to the manner in which the particular blow or blows in that case was or were delivered, there was behind it knowledge that it was likely to result in death. But, in this case, the character of the act is in our opinion, fundamentally different. The act of jumping into a well with a six-month old baby in one’s arms can, in our opinion, but for a miracle, have only one conclusion and we regret that we have to assume that that consequence must have been within the knowledge, but not within the intention of Mt. Dhirajia For these reasons we think that this was a case of culpable homicide. We must now proceed to consider whether or not it was murder. We do not propose to set out verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that in four cases culpable homicide is always murder, subject to certain specified exceptions. The first three cases in which culpable homicide is designated as murder are all cases in which there is found a positive ‘intention’ in the doer of the act. We need not waste time on these because, as we have already said, we do not think that in the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or active intention at all. The only case we need discuss is the fourth which is in these words:

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. That is the fourth case in which culpable homicide is murder. We have already found that Mr. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that “such act” must be “without any excuse for incurring the risk of causing death ….” The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it must in all probability cause death.

In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred – even a risk of the gravest possible character which must normally result in death – the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse. We must consider in assessing what is excuse or is not excuse the state of mind she was in. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. We think she had excuse and that that excuse was panic or fright or whatever you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of murder.

Upon this reasoning, however, we cannot escape from Section 304. It must inevitably follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the charge upon which she should have been convicted and not upon the charge of murder.

As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was rightly acquitted. To our minds, the word ‘attempts’ connotes some conscious endeavour to do the act which is the subject of the particular section. In this case the act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take her own life. We do not think she did. She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned, therefore, the result of the appeal is that the appellant’s conviction under Section 302, I.P.C. is set aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned Judge’s reference to us is concerned, we are unable to accept it and the verdict of not guilty passed by the jury must stand.

There only remains the question of sentence upon the conviction under Section 304 which we have substituted for the conviction under Section 302, I.P.C. It is obvious that this is not a case deserving of a severe punishment. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months’ rigorous imprisonment which in effect means that she will be at once released unless she is required upon some other charge. Order accordingly.

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Case Law on section 300 “fourthly”

                          Gyarsibai       v.      The State     [1953 M.B.]

The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14-8-1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7years, 5years and 1½ years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai’s harassment.

The facts have been amply established by the prosecution evidence.

On these facts the only question that arises for consideration is whether act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses. 1, 2 and 3 of Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300, Penal Code, which then remains for consideration, is the 4th clause. This clause says:

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.

It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability cause death, then the act is not murder as is defined in clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed “without any excuse for incurring the risk of causing death or such bodily injury”. The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was “without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in clause 4 of Section 300, Penal Code.

Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any knowledge of the nature of her act.

Every sane person – and in this case we are bound to take it that the appellant was sane – is presumed to have some knowledge of the nature of his act. This knowledge is not negative by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and her sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant’s act of jumping into a well with her children.

The words used in clause 4 to Section 300, Penal Code are “without any excuse for incurring the risk of causing death or such injury as aforesaid”. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death. Here there is no material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant’s act is clearly murder under clause 4 of Section 300, Penal Code.

But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law’s attitude towards her.

As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into a well, she did so in a conscious effort to take her own life.

The appellant has been sentenced to transportation for life under Section 302, Penal Code. This is the only sentence which could legally be passed in this case. But having regard to the facts and circumstances of the case and also to the fact that the appellant, though not legally insane, was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to Government to commute the sentence of transportation for life to one of three years’ rigorous imprisonment. The sentence of six months’ simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate.

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Case Law on section 300 Exception 1

                             K. M.  Nanavati      v.      State   of   Maharashtra     [1962 SC]

This appeal by special leave arises out of the judgment of the Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.

The case of the prosecution may be stated thus: The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”. He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three children. Finally, they shifted to Bombay. In the same city deceased Ahuja was doing business in automobiles and was residing, along with his sister. Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy between them.

On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja, entered his bed-room and shot him dead. Thereafter, the accused surrendered himself to the police.

From consideration of the evidence, the following facts emerge: The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in his hand. The deceased was found dead in his bath-room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt to the chowkidar Puran Singh and practically admitted the same to his college Samuel. His description of the struggle in the bath-room is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.

We, therefore, unhesitatingly hold, agreeing with the High Court, that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him.

Even so it is contended that the accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the offence would fall under Exception 1 to Section 300 of the Indian Penal Code.

Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the following conditions are complied with: (1) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden. (4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-control. (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

The first question raised is whether Ahuja gave provocation to Nanavati within the meaning of the exception and whether the provocation, if given by him, was grave and sudden.

The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of adultery by his wife in the manner in which the accused did.

The authors of the Indian Penal Code observed:

It is an indisputable fact, that gross insults by words or gestures have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain.

Indian courts have not maintained distinction between words and acts in the application of the doctrine of provocation in a given case. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation and (2) what is the effect of the time lag between the act of provocation and the commission of the offence.

Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs.

In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But, if his version is true-for the purpose of this argument we shall accept that what he has said is true-it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1.30 p.m., when he left his house, and 4.20 p.m., when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier.

On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused-though we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to Section 300 of the Indian Penal Code.

In the result, the conviction of the accused under Section 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct and there are absolutely no grounds for interference. The appeal stands dismissed.

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Case Law on section 300 Exception 4

                        Ghapoo   Yadav      v.         State  of   M.P.         [2003  SC]

Facts of the case

Lekhram and Gopal (‘the deceased’) were sons of Ramlal (PW-1). Accused Gapoo Yadav is the father of accused Janku, Kewal and Mangal Singh. Deceased, the witnesses and the accused belonged to the same village and there was land dispute between them.

On a request made by Ramlal, measurement of the land was done by the revenue authority. It was found that land belonging to accused Mangal Singh was in the possession of Ramlal and over the said land a berry tree existed. Though, initially the tree was in possession of Ramlal, after measurement he parted with the possession thereof. The said tree was cut by the family members of Ramlal a day prior to the incident.

On the date of the incident i.e. 9.6.1986, accused Janku enquired from the deceased as to why they were cutting the tree. Lekhram responded that the tree belonged to them and was planted by their family members. The deceased claimed that he had not cut the tree. This led to altercations and scuffles amongst them and the accused persons assaulted the deceased, which resulted in a fracture of his leg.

Ramlal and Lekhram fled away from the place of the incident, and returned later on with other villagers. They took the deceased, who was then grasping for breath, on a cot to Maharajpur Police Station. He was sent for treatment. On examination the doctor found 7 injuries on his body. His dying declaration was recorded. Later on, the deceased took his last breath on 10.6.1986 at 2.00 a.m.

On consideration of the evidence on record, the trial court found that the accused persons were guilty and accordingly convicted and sentenced them as aforenoted.

Applicability of Exception 4 to Section 300

The fourth Exception to Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do.

There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them, in respect of guilt, upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side.

The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.

The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.

It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.

For application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. In the case at hand, out of the seven injuries, only injury no. 2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased.

The infliction of the injuries and their nature proves the intention of the appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4. After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner.

That being so, Exception 4 to Section 300 IPC is clearly applicable. Appellants are to be convicted under Section 304 Part I, IPC.

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Case Law on Honour Killing

**Bhagwan Dass         v.               State (NCT of Delhi)             [2011 SC]

Markandey Katju J.:   This is yet another case of gruesome honour killing, this time by the accused-appellant of his own daughter.

The prosecution case is that the appellant was very annoyed with his daughter, who had left her husband Raju and was living in an incestuous relationship with her uncle Sriniwas. This infuriated the appellant as he thought this conduct of his daughter Seema had dishonoured his family, and hence he strangulated her with an electric wire. The trial court convicted the appellant and this judgment was upheld by the High Court.

This is a case of circumstantial evidence, but it is settled law that a person can be convicted on circumstantial evidence provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt. In this case, we are satisfied that the prosecution has been able to prove its case beyond reasonable doubt by establishing all the links in the chain of circumstances.

In cases of circumstantial evidence motive is very important, unlike cases of direct evidence where it is not so important.

In the present case, prosecution case was that the motive of the appellant in murdering his daughter was that she was living in adultery with one Sriniwas, who was the son of the maternal aunt of the appellant. The appellant felt humiliated by this, and to avenge the family honour he murdered his own daughter.

The circumstances which connect the accused to the crime are:

i) The motive of the crime which has already been mentioned above.

ii) The omission by the appellant in not informing the police about the death of his daughter for about 10 hours was a totally unnatural conduct on his part.

iii) The appellant had admitted that deceased Seema had stayed in his house on the night of 14.5.2006/15.5.2006. The appellant’s mother was too old to commit the crime, and there is not even a suggestion by the defence that his brother may have committed it. Hence we can safely rule out the possibility that someone else, other than the appellant, committed the crime.

The accused admitted that although Seema had been married about three years ago, she had left her husband and was living in her father’s house for about one month. Thus there was both motive and opportunity for the appellant to commit the murder.

iv) It has come in evidence that the accused appellant with his family members were making preparation for her last rites when the police arrived. Had the police not arrived they would probably have gone ahead and cremated Seema even without a post mortem so as to destroy the evidence of strangulation.

v) The mother of the accused Smt. Dhillo Devi stated before the police that her son (the accused) had told her that he had killed Seema. No doubt a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.PC, but as mentioned in the proviso it can be used to contradict the testimony of a witness.

Smt. Dhillo Devi also appeared as a witness before the trial court, and in her cross examination she was confronted with her statement to the police to whom she had stated that her son (the accused) had told her that he had killed Seema. On being so confronted with her statement to the police she denied that she had made such statement.

We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to Section 162(1), and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment.

In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement in the court she denied that she had made such statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso of Section 162(1) Cr.PC.

In our opinion the statement of the accused to his mother Smt. Dhillo Devi is an extra judicial confession. In State of Rajasthan vs. Raja Ram (2003 SC] it was held:

“An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence.

It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch- stone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.”

No doubt Smt. Dhillo Devi was declared hostile by the prosecution as she resiled from her earlier statement to the police. However, as observed in State vs. Ram Prasad Mishra:

“Evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and the portion of evidence which is consistent with the case of prosecution or defence may be accepted.”

It is the duty of the Court to separate the grain from the chaff, and the maxim falsus in uno falsus in omnibus has no application in India [Nisar Alli v. State of Uttar Pradesh 1957 SC].

In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence we accept her statement to the police and reject her statement in court. The defence has not shown that the police had any enmity with the accused, or had some other reason to falsely implicate him. We are of the opinion that this was a clear case of murder and the entire circumstances point to the guilt of the accused.

vi) The cause of death was opined by Dr. Pravindra Singh as death “due to asphyxia as a result of ante-mortem strangulation by ligature.” It is evident that this is a case of murder, and not suicide. The body was not found hanging but lying on the ground.

vii) The accused made a statement to the SDM immediately after the incident and has signed the same. No doubt he claimed in his statement under Section 313 Cr.PC that nothing was asked by the SDM but he did not clarify how his signature appeared on the statement, nor did he say that he was forced to sign his statement nor was the statement challenged in the cross examination of the SDM. The SDM appeared as a witness before the trial court and he has proved the statement in his evidence.

We see no reason to disbelieve the SDM as there is nothing to show that he had any enmity against the accused or had any other reason for making a false statement in Court.

viii) The accused had given a statement to the SDM in the presence of Inspector Nand Kumar which led to discovery of the electric wire by which the crime was committed. We are of the opinion that this disclosure was admissible as evidence under Section 27 of the Evidence Act. In his evidence the police Inspector stated that at the pointing out of the accused the electric wire with which the accused is alleged to have strangulated his daughter was recovered from under a bed in a room.

There is overwhelming circumstantial evidence to show that the accused committed the crime as he felt that he was dishonoured by his daughter.

In our opinion honour killing come within the category of rarest of rare cases deserving death punishment. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate `honour’ killings should know that the gallows await them.

Let a copy of this judgment be sent to Registrars of all High Courts who shall circulate the same to all Judges of the Courts.

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Jai Prakash        v.        State (Delhi Administration)        [1991  SC]

Brief facts

A single blow was inflicted on the chest with knife and the same proved to be fatal. Conviction under Section 302 of the Penal Code.

Law on Clause Thirdly of Section 300:

Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature.

Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause.

The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue.

Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.

It can thus be seen that the ‘knowledge’ as contrasted with ‘intention’ signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, ‘intention’ is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one’s conduct so as to bring about a certain event.  Therefore, in the case of ‘intention’ mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact.

In Clause Thirdly the words “intended to be inflicted” are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury.

In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh’s case, the weapon used, the degree of force released in wielding it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors.

These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 IPC is attracted. In the present enquiry we need not advert to that aspect since we are concerned only with scope of Clause Thirdly of Section 300 IPC.

…..the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not and it is held that circumstances like sudden quarrel in a fight or when the deceased intervenes in such a fight, would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body. When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but there may be circumstances like those, as mentioned above, which rebut such presumption and throw a doubt about the application of Clause Thirdly. Of course much depends on the facts and circumstances of each case.

…..in all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result.          It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge of the consequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result.

We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted. We are concerned under Clause Thirdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, Clause Thirdly is attracted and it would be murder unless one of the exceptions to Section 300 is attracted.

If on the other hand this ingredient of ‘intention’ is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II IPC.

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                                    Gudar Dusadh       v.      State of Bihar    [1972 SC]

In this case, one lathi blow was inflicted on the head which proved to be fatal. While upholding the conviction under Section 302 of the Penal Code, a three Judge Bench of the Supreme Court laid down the following law:

“The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force and resulted in a 3” long fracture of the left parietal bone. Ramlal deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause “3rdly” of Section 300.”

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Mahesh Balmiki      v.       State of M.P.         [2000  SC]

In this case the accused gave a single fatal blow with knife on the chest on the left side of the sternum, fracturing both the ribs and track of the wound going through the sternum after passing the ribs and thereafter entering the liver and perforating a portion of stomach. Confirming the conviction under Section 302, the Supreme Court observed thus:

“Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.”

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Dhupa Chamar         v.         State Of Bihar        [2002  SC]

Dhupa  Chamar-appellant 1 and Tokha Chamar-appellant 2 were convicted by the trial court under Section 302 of the Penal Code and sentenced to undergo imprisonment for life.

Prosecution case, in short, is that on 13th June, 1983 at 8.00 p.m., there was an incident of assault by fists and slaps. On 14th June, 1983 at 8.00 a.m., appellants armed with bhalas came near the house of Ramu Chamar and started abusing his family members. Ram Patia Devi made a protest whereupon appellant Dhupa Chamar gave a bhala blow on the left side of her neck and the same was pulled out forcibly from the neck as a result of which she fell down and died instantaneously. Appellant Tokha Chamar assaulted Dharam Chamar in the abdomen with bhala. Thereupon injured Dharam Chamar and Sharda Devi were taken to the hospital where Dharam Chamar was declared as brought dead.

Upon conclusion of trial, the Sessions Judge, while acquitting three accused persons of the charge under Section 302/149, convicted the appellants as stated above.

A question arises as to when death is caused by a single blow, whether clause Thirdly of Section 300 is attracted. The ingredient ‘intention’ in that clause is very important and that gives a clue in a given case whether offence involved is murder or not.

Intention is different from motive. It is the intention with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of expression ‘intention’ as used in these provisions.

In this connection, we may usefully refer to the high authority of Vivian Bose, J in the case of Virsa Singh v. State of Punjab [1958 SC]. In that case, appellant Virsa Singh was convicted under Section 302 of the Penal Code which was upheld by this Court although there was only one injury which was attributed to him which was caused as a result of spear thrust. It was contended in that case that as it was a case of solitary injury, it could not be inferred that there was intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature as such act of the offender did not amount to murder.

A Bench of this Court in the case of Jagrup Singh v. State of Haryana [1981 SC] observed thus:-

“These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh’s case for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law. The decision in Virsa Singh ‘s case has throughout been followed as laying down the guiding principles.”

Keeping in mind the aforesaid principles, if we examine facts of the present case, Clause Thirdly of Section 300 is fully attracted. It appears that the accused persons came armed with deadly weapons and there was an altercation and exchange of hot words whereafter appellant No. 1 assaulted victim Ram Patia Devi with a bhala causing injury on the chest rupturing important blood vessels and cutting of aorta and other artery resulting in her instantaneous death.

In view of the nature of injury whereby important blood vessels were ruptured inasmuch aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature.

The above circumstance would show that accused intentionally inflicted the injury and the same would indicate such a state of mind of the appellant Dhupa Chamar that he aimed and inflicted the injury with deadly weapon. In the absence of evidence or reasonable explanation to show that this appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessel and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient ‘intention’ is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. Therefore, inevitable conclusion would be that appellant Dhupa Chamar has committed the offence of murder and not culpable homicide not amounting to murder.

In view of the fact that three accused persons were acquitted by the trial court itself of the charge under Section 302/149 out of the seven accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and evidence, and as the number of accused persons becomes less than five, there cannot be said to be any unlawful assembly, as such conviction of appellant Nos. 2 to 4 under Section 302/149 becomes unwarranted.

In the result, appeal of appellant Dhupa Chamar fails and the same is accordingly dismissed. Appeal of appellant Tokha Chamar, Doma Chamar and Adalat Chamar is allowed in part, their conviction and sentence under Section 302/149 of the Penal Code are set aside and they are acquitted of this charge. Their convictions and sentences under other sections are confirmed.

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