Ganesan vs State, Alangulam Police Station

S. Nagamuthu, J.—The Appellant is the First Accused in S.C. No. 186 of 2008 on the file of the Principal Sessions Judge, Virudhunagar

District at Srivilliputhur. The Second Accused in the said case is one Mr. Sivaraja. During the trial of the case, it was found that the Second

Accused was a juvenile, as on the date of commission of the offence. Therefore, the Trial Court had separated the case against A2 and forwarded

the same to the Juvenile Justice Board for enquiry under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. Thus,

ultimately, it was this Appellant, who alone faced the complete trial. Finally, the Trial Court by judgment dated 30.11.2010 convicted him under

Sections 341, 302 & 326, I.P.C. and sentenced him to undergo imprisonment for life for the offence u/s 302, I.P.C. (no fine was imposed); to

undergo a Simple Imprisonment for one month for the offence u/s 341, I.P.C. and to undergo Rigorous Imprisonment for three years and to pay a

fine of Rs. 3,000/-, in default, to undergo Rigorous Imprisonment for nine months for the offence u/s 326, I.P.C. The sentences have been ordered

to run concurrently. Challenging the said conviction and sentence, the Appellant is before this Court with this Appeal. The case of the prosecution

in brief is as follows:

The deceased in this case was one Mr. Sivanantha Raja. PWs. 1, 2 & 3 are the son, mother and another son respectively of the deceased. All of

them were residing in ""Kandiapuram Repatriate camp"" in Virudhunagar District. Over trivial matters, the deceased had frequent quarrels with these

two Accused, who also belonged to the same place. On 16.11.2007, at about 7.00 a.m., the deceased and PW1 were proceeding in a TVS

motorcycle to the house of one Mr. Ravikumar. When they were nearing the house of Ravikumar, these two Accused suddenly appeared at the

scene of occurrence; both armed with weapons. The First Accused was armed with arrival and the Second Accused (juvenile Accused) was

armed with iron pipe. The TVS motor cycle was driven by the deceased, whereas PW1 was travelling as pillion rider. On intercepting the

motorcycle, suddenly, the First Accused cut the deceased on the right hand with arrival. The right hand was severed at the level of lower 1/3rd.

Then, he again cut the deceased with arrival on his left hand. PW1 tried to intervene with a view to save his father. The Second Accused (juvenile

Accused) attacked him with iron pipe on his left thigh, which resulted in a fracture. Then, both the Accused fled away from the scene of

occurrence. PW2, the wife of the deceased, was at that time at her house. She heard the hue and cry from the place of occurrence. When she

came out of her house, she found the First Accused armed with arrival and the Second Accused armed with iron pipe. When she went to the place

of occurrence, she found the deceased as well as PW1 with injuries. PW3 is yet another son of the deceased. According to him, at the time of

occurrence, he was at his home. As a matter of fact, he was sleeping. On hearing the hue and cry, he woke up and rushed to the place of

occurrence. He found these two Accused armed with weapons. He also found PW1 and the deceased with injuries. Immediately, PW3 made

arrangements to shift the deceased as well as PW1 to the hospital. PW4 was then owning a Tata Sumo car. At request, he rushed to the place of

occurrence and in his Tata Sumo car, he shifted the deceased and P.W.1 to the Government Hospital, at Sivakasi. The amputated hand of the

deceased was also taken.

PW5 was an Assistant Surgeon attached to the Government Hospital at Sivakasi. On 16.11.2007, at 8.45 a.m., PW1 was brought to him for

treatment. PW1 told him that he was attacked by two known persons with iron rod and arrival. PW1 was conscious. On examination, on the body

of the PW1, he found the following injuries:

(i) Incised wound in left forearm 20 x 10 x bone depth about 500 gms blood clot present in the next wound. Skin flap present.

(ii) Cut injury in left thigh 5 x 1 x 1/2 cm.

(iii) Movement in left thigh. Fracture left (nc).

After initial treatment at Government Hospital at Sivakasi, for better treatment, PW1 was shifted to a private hospital known as ''Graham

hospital'' at Sivakasi. PW6 was the Doctor in the said hospital. He examined PW1 and found the injuries as noted down in the accident register

recorded in the Government hospital by PW5. He gave treatment to PW1. On examination, he found fracture in the femur of the left leg. He

conducted surgery on him to correct the same. Ex. P6 is the certificate issued by him. The injured was discharged from the hospital on

19.12.2007. According to him, the injury No. 2 is grievous in nature.

On examining the deceased, the Doctor opined that he was dead. Therefore, the body was sent to mortuary.

PW10 was a Head Constable attached to Alangulam Police Station. On 16.11.2007, at about 7.45 a.m., he heard a message from unknown

source about the occurrence. He immediately informed PW11 about the same. PW11 was yet another Head Constable attached to Alangulam

Police Station. On 16.11.2007, at about 8.00 a.m., he received a message from PW10, who was in the repatriate camp about the occurrence.

Then, he rushed to Graham hospital at Sivakasi and recorded the statement of PW1 and returned to the Police Station at 10.30 a.m. He registered

a case in Crime No. 136 of 2007 under Sections 341, 326 & 302, I.P.C. Ex. P1 is the Complaint and Ex. P 15 is the First Information Report.

He forwarded Exs. P1 & P.15 to the jurisdictional Magistrate and then handed over the case files to PW13 for investigation.

Taking up the case for investigation on 16.11.2007, PW13, the Inspector of Police attached to Alangulam Police Station proceeded to the

place of occurrence at 11.00 a.m. at 11.30 a.m., he prepared an observation mahazar (Ex. P9) showing the place of occurrence in the presence of

PW8 and another witness. He also prepared rough sketch (Ex. P16) in the presence of the same witnesses. Then, he recovered bloodstained earth

and sample earth from the place of occurrence as well as TVS motorcycle bearing registration No. TN-69-W-4451 (MO1) from the place of

occurrence under Ex. P10 mahazar in the presence of witnesses. The said TVS motorcycle has been identified by PW1 as the one used by the

deceased. On the same day, between 1 a.m. to 2.30 p.m., PW13 conducted inquest on the body of the deceased in the presence of

panchayatdars. During the same, he examined PWs. 1 to 3 and few more witnesses and recorded the statements. Ex. P17 is the Inquest Report.

Then, he forwarded the body for Post-mortem.

PW5 Dr. Ayyanar, conducted postmortem on the body of the deceased on 16.11.2007. He found the following injuries:

External injuries:

(1) Right upper limb amputated at the level of lower 1/3 of arm and amputated upper limb seen separately with cut injury. Clean cut injury at lower

1/3rd of arm.

(2) Fracture of (nc) right forearm close to wrist.

(3) incised wound in left forearm 10x5x1 cm.

Trachea-Normal, No rib fracture. Heart empty, lungs pale. Liver, spleen, congested. GB-partially full, stomach contains about 200 ml partially

digested food material.

Intestine: distended with gas & pale. Kidney congested.

Spine, cranium-normal.

Opinion as to cause to death--

the deceased would appear to have died of shock due to blood loss due to injury of right upper limb.

Continuing the investigation, PW13, arrested both the Accused on 17.11.2007 at 12.30 p.m. On such arrest, the Appellant/Accused gave a

voluntary confession, in which, he had disclosed the place, where he had hidden the arrival. Similarly, the Second Accused also gave a voluntary

confession, in which, he had disclosed the place where he had hidden the iron rod.

In pursuance of the same, in the presence of PW9 and another witness, the Accused took PW13 to the said place and the Appellant produced

arrival, which was recovered under Ex. P18-Mahazar. The Second Accused produced M03-iron rod, which was recovered under Ex. P13

mahazar. Then, he examined few more witnesses including the Doctor. He collected the Medical Certificates. He made a request to the Magistrate

to forward the material objects for chemical examination. PW7 conducted examination of the material objects and submitted a report under Ex.

P7. Ex. P8 is the Serology Report. He found human blood on the shirt recovered from the First Accused, the bloodstained earth and the arrival.

The bloodstain found on the arrival is of human origin, but the grouping test was inconclusive.

On completing the investigation, PW13 filed Final Report enclosing the details of the Accused. In the Final Report, PW13 had mentioned that

A2 was an adult. Therefore, the Trial Court, based on the above materials, framed charges against both the Accused. The first charge is u/s 341,

I.P.C. against both the Accused. Second charge is u/s 302, I.P.C. as against the Appellant for having caused the death of the deceased. The third

charge is against both the Accused u/s 326, I.P.C. and the fourth charge is u/s 302, I.P.C. read with 34, I.P.C. against the Second Accused. Both

the Accused were tried by the Lower Court. During the trial, on the side of the prosecution as many as 13 witnesses were examined and 19

documents were exhibited.

In respect of the incriminating evidences, both the Accused were questioned u/s 313, Cr.P.C. They denied the same as false. Thereafter,

during the course of further proceedings, a plea was taken by the Second Accused that he was a juvenile as on the date of the occurrence. The

Trial Court found substance in the same. Finally, the Trial Court held that the Second Accused was a juvenile and therefore, the case against him

was split up and the same was forwarded to the Juvenile Justice Board for enquiry.

So far as the Appellant/First Accused is concerned, he did not choose to examine any witness on his side. Having considered the above

materials, the Trial Court found the Appellant/Accused guilty under Sections 341, 326 & 302, I.P.C. and accordingly, punished as detailed in the

first paragraph of the Judgment. That is how, the Appellant is before this Court with this Appeal.

We have heard the learned Counsel for the Appellant and the learned Additional Public Prosecutor for the State.

The learned Counsel for the Appellant would submit that the entire case of the prosecution has been fabricated. He would contend that the

original First Information Report has been suppressed and in its place, Ex. P1 has been substituted. On this ground, according to the learned

Counsel, the entire case of the prosecution should be doubted and rejected.

Nextly, the learned Counsel would submit that since PW1 happened to be an interested person, his evidence should be disbelieved. He would

further state that PWs. 2 & 3 would not have seen the occurrence. Lastly, he would submit that PW1 would not have been in a conscious position

to make any statement and hence, Ex. P1 cannot be believed. In any event, according to the learned Counsel, the offence said to have been

committed by the Appellant would not fall u/s 302, IPC and the same would fall only u/s 304(11), IPC.

The learned Additional Public Prosecutor would, however, stoutly oppose this Appeal. According to him, there is no delay in the First

Information Report so as to create any doubt in the prosecution case. He would submit that PW1 is an injured eye witness and therefore, there is

no reason to reject his evidence. He would further submit that though PW3 has stated that the Complaint was given when PW1 was in the

Government hospital that by itself would not make any serious doubt in the case of the prosecution, so as to reject the same. The learned Counsel

would further submit that the offence would squarely fall u/s 302, I.P.C. and therefore, the Accused was charged under Sections 302, 326 & 341,

I.P.C. Thus, according to the learned Counsel, there are no grounds to interfere with the judgment of the Lower Court.

We have considered the above submissions.

The first ground raised by the learned Counsel is that, according to PW3, when PW1 was in the Government hospital, PW11 came to the

hospital and obtained a statement. That statement, according to the Counsel, is the earliest information to the Police. However, according to the

present version of the prosecution, the Complaint was obtained by PW11 from PW1 only in Graham Hospital. From this, the learned Counsel

would contend that the earliest information has been suppressed. In our considered opinion, the evidence of PW3 in this regard need not be given

undue weightage of. Due to fading memory, PW3 would have stated so. But nothing was asked to PW1, in this regard as to whether the Police

obtained a Complaint from the Government Hospital. Thus, hardly we find any reason to give weightage to the said contradiction. In our

considered opinion, on the basis of the evidence of PW3, it cannot be held that the original Complaint was suppressed and in its place, Ex. P1 was

substituted. Therefore, we are inclined only to reject the argument of the learned Counsel in this regard.

Nextly, the learned Counsel would submit that PW1 would not have been in a position to speak at all, at the time when PW11 had gone to the

hospital. Thus, according to the Counsel, Ex. P1 would not have been given by PW1. In this regard, we may refer to the evidence of the Doctor,

PW6. During the cross-examination, PW6 has stated that when PW1 was undergoing treatment in the hospital, he was in a position to answer the

queries raised by him cogently. Thus, it is crystal clear that PW1 was conscious and he was able to speak and therefore, Ex. P1 would have been

given only by him.

The next argument of the learned Counsel for the Appellant is that the weapons would not have been recovered on the confession of the

Accused. In order to substantiate this contention, the learned Counsel is not in a position to point out any infirmity in the evidence of the witnesses

for the prosecution who have clearly spoken to the confession made by Accused and the consequential recoveries of the material objects.

Therefore, we find no substance in this argument also.

Coming to the evidence of PW1, admittedly, he is an injured witness. He sustained injuries in the very same occurrence, in which, the

deceased also sustained injuries. Therefore, his presence cannot be disputed at all. There are no circumstances brought on record to doubt the

credibility of PW1 as well. As a matter of fact, though PW1 has been cross-examined at length, nothing has been elicited from him to doubt the

veracity of the evidence of PW1.

The learned Counsel for the Appellant would nextly submit that PWs. 2 & 3 would not have witnessed the occurrence. Of course, it is true

that they are not the eyewitnesses to the entire occurrence. It is not the case of the prosecution itself that they saw the occurrence. But, they have

spoken to the fact that they found these two Accused at the place of occurrence armed with weapons and also the deceased and PW1, with

injuries. These evidences of PWs. 2 & 3 would go to corroborate the evidence of PW1 and thus, from the evidences of PWs. 2 & 3 also, it has

been established that the deceased and PW1 were attacked only by these Accused.

Nextly, PWs. 2 & 3 only made arrangements, through PW4 to take the deceased as well as PW1 to the hospital. There is no delay in bringing

PW1 to the hospital. At the earliest, he made a statement to the Doctor that he was attacked by two known persons; one armed with arrival and

the other armed with iron rod. This is the earliest information passed on by PW1, which duly corroborates the evidence of PW1.

Thus, there are enormous evidence available on record to come to the safe conclusion that it was this Accused along with other, who cut the

deceased as well as attacked PW1. From the evidence of the Doctor, it has been established by the prosecution that the death of the deceased

was due to shock due to loss of blood due to the injuries. Thus, it has been established that the death of the deceased was caused by the act of this

Appellant.

Now the question is, what is the offence that the Appellant has committed by causing the death of the deceased. It is the contention of the

learned Counsel for the Appellant that the offence would not fall u/s 302 I.P.C.

Let us now examine as to whether the Accused has committed murder of the deceased. Killing of a human being by another human being is

homicide. It may be a lawful homicide (not culpable) falling under any one of the general exceptions in Chapter IV of the Indian Penal Code.

Culpable homicide is an unlawful homicide. If the death of a human being is caused by an ""act"" falling within the ambit of any one of the three limbs

of Section 299, it is culpable homicide. It is a wrongful homicide done with culpable mental state. Some culpable homicides are ""murders"" in terms

of Section 300 of I.P.C. and the others are ""culpable homicides not amounting to murder"". Undoubtedly, culpable homicide is the genus and the

murder is the species. Thus, every murder is a culpable homicide and not vice versa.

In the scheme of the Code, the First Limb of Section 299, I.P.C. corresponds to the First Limb of Section 300, I.P.C. the Second Limb of

Section 299, I.P.C. corresponds to the second and Third Limbs of Section 300, I.P.C. and the Third Limb of Section 299, I.P.C. corresponds to

the Fourth Limb of Section 300, I.P.C. For both u/s 299 & Section 300, I.P.C. the foremost requirement is that the death should have resulted,

either directly by the act of the Accused or from some natural consequence of the said act.

In the case on hand, from the evidence of the Doctor and from the other facts and circumstances, it can be uncontrovertibly concluded that the

death was the direct result of the injuries caused by the Accused and so, it is ""culpable homicide"".

Now, we will examine as to whether the said act of the Accused falls under the First Limb of Section 299, I.P.C. or the First Limb of Section

300, I.P.C. Both these limbs postulate ""intention to cause the death"". Intention is different from ""motive"" or ""ignorance"" or ""negligence"". Intention

requires something more than the mere foresight of the consequences. Intention is a conscious state in which mental faculties are aroused into

activity and summoned into action for the purpose of achieving the conceived end. Thus, in the case of intention mental faculties are projected in a

set of direction. But, knowledge is a bare awareness of the likely consequences. Whether, in a given case, the Accused had the ""intention"" or

knowledge"" is a question of fact (vide Jai Prakash Vs. State (Delhi Administration), . Intention is a fact to be inferred from various other facts and

circumstances involved in the given case, such as, the gravity of the motive, the gravity of the injury/injuries, number of injuries, seat of the

injury/injuries, the force used, the weapon used, etc. In this case, the Accused caused one injury on the hand, in which the forearm was severed.

The second injury was a simple one on the other forearm. It is not as though there was no further opportunity for the Accused to cause many more

injuries on the deceased so as to finish him off. Neither it is not the case that there was no opportunity for him to cause injuries on the vital parts,

such as, head, chest, abdomen, etc. There was no other intervening circumstances. The motive is also very trivial in nature. From these facts, it can

reasonably be inferred that the Accused had no intention to cause the death of the deceased. Thus, the act of the Accused does not fall within the

First Limb of Section 299 of the Code as well as the First Limb of Section 300 of the Code.

Now let us examine as to whether it falls under the Second Limb of Section 299 or the Second or Third Limb of Section 300, I.P.C. In these

provisions, the intention of the Accused should have been to cause bodily injury. But, what makes the difference is the nature of the injury intended.

In the instant case, from the facts placed on record, it can be safely concluded that the Accused came to the spot, armed with weapons with the

intention of causing bodily injury to the deceased. Here, the intention of the Accused was to cause the death or only to cause a bodily injury is a

matter of inference from the facts. We have already concluded supra that the Accused had no intention to cause the death. But, he had intention to

cause bodily injury. To bring it further within the ambit of this limb (Second Limb of Section 299), in addition, it should be proved that the intended

injury was likely to cause death. In the instant case we will discuss as to whether the intended injury is likely to cause death or not later.

The Second Limb of Section 300 of the Code speaks of intention of causing bodily injury and that the said bodily injury is likely to cause the

death of the person to whom the harm is caused. In addition to that, the offender should also know the state of health of the victim. Thus, this limb

relates to the knowledge possessed by the offender regarding the particular victim, who has peculiar condition of the state of health that the injury

caused is likely to cause the death of the said victim. In other words, the said injury may not even likely to cause the death of a man, having

ordinary health. Thus, this limb refers to a particular individual, who has got a peculiar state of health and because of the same, even a slightest

harm caused may be likely to cause the death. But, the offender should have knowledge that such harm caused to him is likely to cause the death,

due to his bad health condition, In the instant case, the deceased was not suffering from any disease and he was maintaining ordinary health.

Therefore, the Second Limb of Section 300 of the Code is not applicable to the instant case.

It is the contention of the learned Additional Public Prosecutor that the act of the Accused, in the instant case, squarely falls within the ambit of

the Third Limb of Section 300 of the Code. As per this provision, the bodily injury so intended to be inflicted should be sufficient in the ordinary

course of nature to cause the death. Here, one of the finest aspects of this limb needs to be noted. Obviously, this limb does not speak of the

injury resulted"". Per contra, it speaks of the injury ""intended to be inflicted"" (vide/he judgment of the Hon''ble Supreme Court in Virsa Singh Vs.

The State of Punjab, . In a given case, the intended injury may result by the act of the Accused or a different injury may even result. If the resultant

injury was the one intended and if that injury is found to be sufficient in the ordinary course of nature to cause the death, then, there can be no

difficulty to hold that the act of the Accused falls within the ambit of this limb. In case, the intended injury does not result, but a different injury

results and thus such resulted injury causes the death either directly or indirectly, then, the nature of the resultant injury is not the decisive factor, as

the intended injury alone is the decisive factor. This may be explained by means of easy illustrations.

Illustration (i): The Accused intends to cause injury on the neck with a formidable dangerous weapon. Accordingly, he tries to execute the

intention. When the blow was aimed against the neck the deceased wards off. As a result, the blow falls on the hand resulting in amputation of the

hand. Because of this injury, the deceased dies. But for the intervening circumstance viz., warding off, the deceased would have been beheaded.

Here, in this case, it may be held that the injury on the hand, which has caused the death, may not be sufficient in the ordinary course of nature

to cause the death. But, this is not a decisive factor. Here, the injury on the hand was not the intended injury. The intended injury was on the neck.

If the intended injury had resulted, surely, the same would have been sufficient in the ordinary course of nature to cause the death. Therefore, in this

illustration, the act of the Accused squarely falls within the ambit of Section 300 of the Code.

Illustration (ii): The Accused had the intention to cause bodily injury only on the hand and the intended injury is caused. The said injury is held

to be not sufficient in the ordinary course of nature to cause the death. In this case, the act of the Accused would not fall under the Third Limb of

Section 300 of the Code.

Thus, it is not the injury, which resulted eventually, but the injury which was intended to be inflicted that matters. In this regard we may usefully

again refer to the judgment of the Hon''ble Supreme Court in Jai Prakash Vs. State (Delhi Administration), wherein in para 13 the Court has held

as follows:

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 relation 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, I.P.C. 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, I.P.C.

(Emphasis added)

In the above case, the Hon''ble Supreme Court has followed the principle reiterated in Randhir Singh alias Dhire Vs. State of Punjab, wherein

in para 8, the Court has earlier held as follows:

8... True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon

this subject in view of a very recent decision of this Court in Jagrup Singh v. The State of Haryana. Decided on May 7, 1981 Sen, J. speaking for

the Court, after referring to various previous decisions on the subject including the one relied upon in this case, Virsa Singh Vs. The State of

Punjab, observed that in order to bring the case within Para III of Section 300, I.P.C., it must be proved that there was an intention to inflict that

particular bodily injury which in the ordinary course of nature was sufficient to case death. In other words, that the injury found to be present was

the injury that was intended to be inflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the

Appellant.

(Emphasis added)

In the case on hand, it is not as though the Accused intended to cause injury on any vital part of the body. When the deceased was proceeding

in the Motorcycle, the Accused caused two injuries on the hands. These injuries are not ward off injuries. Thus, the injuries on the hands of the

deceased were actually the injuries intended to be inflicted by the Accused.

The learned Additional Public Prosecutor would, however, contend that the injury to the right hand, severing the forearm, is sufficient, in the

ordinary course of nature, to cause the death. We are unable to agree with the said argument advanced by the learned Additional Public

Prosecutor. In our considered view the said injuries on the deceased were neither sufficient to cause death in terms of the Third Limb of Section

300, I.P.C., nor, was it likely to cause death in terms of the Second Limb of Section 299, I.P.C. Our reasons are as follows: Here, ""sufficient to

cause death"" means more than a mere likelihood of the death being caused. In other words, it is almost a certainty. Likely to cause the death

means, not a mere possibility. The word, ''likely'' conveys the sense of probability. Probable means, something more than mere possibility. When

chances of death are more than that of survival, one may say that the death is a probability. Where chances of death and survival are equally

possible, one may say that the death is a possibility, but not a probability. In this regard, we may say that it is possible that the death may result

when the forearm is amputated. But, chances for survival are more than the chance for death. Thus, the death is neither certain, nor probable, but

only possible. In the instant case, PW5, the Doctor Ayyanar, who conducted autopsy on the body of the deceased, has not opined that the injuries

found on the deceased were either sufficient to cause the death or likely to cause death of the deceased. Therefore, we are forced to hold that the

injuries found on the deceased are neither sufficient to cause the death in the ordinary course of nature nor likely to cause death.

The Second Limb of Section 299 of the Code speaks of the act of the Accused with an intention of causing such bodily injury as is likely to

cause the death. We have already concluded that the injuries on the deceased, in the instant case, are not likely to cause the death. The Second

Limb of Section 299 of the Code is relatable to the second and Third Limbs of Section 300 of the Code, since in all these provisions, the basic

requirement is doing an act with the intention of causing bodily injury. If the intended bodily injury falls within the Second or Third Limb of Section

300 of the Code respectively, culpable homicide becomes murder. If it does not fall either within the ambit of the Second Limb or Third Limb of

Section 300 of the Code and it falls only within the ambit of Second Limb of Section 299 of the Code, then, the offence is only a culpable

homicide not amounting to murder. So far as the nature of the injury in this case is concerned, the death as a consequence of these injuries is only

possible. We have already highlighted the difference between a mere possibility and probability of death as a consequence. If only the chance of

death is more than a mere possibility, in other words, if it is not a probability, then, one can hold that the said injury is neither likely to cause the

death nor sufficient to cause death in the ordinary course of nature. In view of the foregoing discussions, we hold that the act of the Accused does

not fall either within the ambit of the Second Limb of Section 299, I.P.C. or the Third Limb of Section 300, I.P.C.

Now, turning to the Third Limb of Section 299 of the Code and the Fourth Limb of Section 300 of the Code, these provisions speak of

knowledge. Though both the provisions speak of the knowledge and both the provisions speak of the bodily injury, which is likely to cause the

death, the distinction lies in the degree of the knowledge and the imminent dangerous nature of the injury and the probability of the death or bodily

injury, which is likely to cause the death. The Accused, in this case, can be attributed certainly with ordinary knowledge (less degree of

knowledge) that his act is likely to cause death. Here, we need to notice, it is not the knowledge that the injury is likely to cause death, but it is the

act of the Accused as a whole that is likely to cause death. Therefore, the act of the Accused, in the instant case, would fall under the Third Limb

of Section 299 of the Code. As per Section 300, the Accused should be attributed with knowledge that his act is so imminently dangerous that it

must, in all probabilities, cause the death or such bodily injury as is likely to cause the death. Here, we need to emphasize two phrases, viz., ""so

imminently dangerous"" and ""in all probability"". Here, the Accused should have been aware of the consequence of his act. The consequence may be

either imminently dangerous to life or a bodily injury which is likely to cause the death. If only it can be inferred from the facts and circumstances

that the Accused would have been aware of either one of the above consequences, then it can be held that the Accused had the requisite

knowledge as postulated in this provision. Such knowledge should be of highest degree. It is only the degree of knowledge that makes the

difference between the Fourth Limb of Section 300, I.P.C. and the Third Limb of Section 299, I.P.C. To attract Section 300, I.P.C. the Accused

must be attributed not only with the knowledge of a mere possibility, but the knowledge that the act is imminently dangerous and that in all

probability, the act is likely to cause the death or likely to cause such bodily injury as is likely to cause the death. Here, in this case, in our

considered opinion, such high degree of knowledge that the injury caused to the hand is likely to cause death or by all probability will result in

death cannot be attributed to the Accused. Therefore, the Fourth Limb of Section 300 of the Code is not attracted.

To conclude, in view of the foregoing discussions, we hold that the act of the Accused, in the instant case, in causing the death of the deceased,

squarely falls within the ambit of the Third Limb of Section 299 of the Code, and thus, it is culpable homicide, not tantamounting to murder, and so,

the Accused is liable to be punished u/s 304 of the Indian Penal Code.

Now, turning to Section 304 of the Code, it contains two parts. The first part provides for punishment of culpable homicide, not amounting to

murder, if the act, by which the death is caused, is done with the intention of causing death or such bodily injury as is likely to cause death. Thus,

the essential requirement is the intention. The second part deals with culpable homicide, not amounting to murder, which speaks of the knowledge

that it is likely to cause the death.

A close reading of these two provisions would make it manifestly clear that--

(i) if the act of the Accused is a culpable homicide, not amounting to murder, falling within the first or Second Limb of Section 299 of the Code,

then, the offender is punishable u/s 304(I) of the Code.

(ii) If the act of the Accused is culpable homicide, not amounting to murder, falling within the Third Limb of Section 299 of the Code, then, the

offender is punishable u/s 304(II) of the Code.

(iii) Similarly, if the act of the Accused falls within the ambit of first, Second or Third Limb of Section 300 of the Code, and if the same falls under

any one of the special Exceptions to Section 300 of the Code, the act of the Accused is only a culpable homicide not amounting to murder

punishable u/s 304(I) of the Code.

(iv) If the act of the Accused falls within the Fourth Limb of Section 300 of the Code and if any one of the special Exceptions to Section 300 of the

Code is attracted, the said act is only a culpable homicide, not amounting to murder, which is punishable u/s 304(II) of the Code.

In the instant case, we have already concluded that the act of the Accused falls within the ambit of Third Limb of Section 299 of the Code, and

therefore, he is liable to be punished u/s 304(II) of the Code.

Now, coming to the quantum of sentence, the learned Counsel for the Appellant would submit that at the time of occurrence, the Accused was

hardly 22 years old and still, he is a bachelor. He has got no bad antecedents. He would, therefore, submit that a lesser punishment may be

imposed on him so as to enable him to reform himself and also to become a useful member of the humanity. He would also bring to the notice of

this Court the family circumstances of the Accused.

Having regard to the above, we are of the view that imposing of a sentence of Rigorous Imprisonment for six years with a fine of Rs. 5,000/-

will be the just punishment for him. The conviction and sentence imposed on the Appellant for offences under Sections 326 & 341 of the Indian

Penal Code are liable to be confirmed. In the result, the Criminal Appeal is partly allowed:

(i) the conviction and sentence imposed on the Appellant under Sections 326 & 341, I.P.C. are confirmed;

(ii) the conviction and sentence imposed on the Appellant for the offence 302, I.P.C. is set aside and instead he is convicted u/s 304(II), IPC and

sentenced to undergo Rigorous Imprisonment for six years and to pay a fine of Rs. 5,000/- (Rupees five thousand only), in default, to undergo

Rigorous Imprisonment for three months. The sentences are ordered to run concurrently.