Jatru Oraon vs State Of Bihar

Heard, learned counsel for the appellant, Mr. Binod Kumar Jha and Mr. Arun Kumar Pandey, learned Additional Public Prosecutor representing the State.

By the impugned judgment dated 17.06.1996 rendered in Sessions Trial No. 233 of 1995, the learned court of 1st Additional Sessions Judge, Gumla has convicted the sole accused/appellant herein for the charge under Section 302 of the I.P.C. and by the order dated 18.06.1996 sentenced him to undergo rigorous imprisonment for life.

Informant is the wife of the deceased, Mangal Oraon of village -Katiya, P.S.-Bishunpur, District- Gumla upon whose fardbeyan recorded at 16.30 Hours at village -Katiya on 12th May, 1995 by Sub-Inspector, J. P. Singh of Bishunpur P.S., the First Information Report bearing Bishunpur P. S. Case No.24 of 1995 was registered on 13.05.1995 at 10.10 Hrs. under section 302 of the I.P.C against the sole accused, Jatru Oraon appellant herein. The gist of allegation as contained in the fardbeyan are as under:-

Informant Deolait Orain (P.W.3) alleged that yesterday i.e. Thursday (11.05.1995) at quarter to three in the day her husband, Mangal Oraon (deceased) proceeded to collect fire wood from the forest after informing her. But on the way stopped at the new house of villager Chammu Oraon and started watching the beating of the tiles(Khapra). At that time around 3.00 P.M. Jatru Oraon, son of the Mangra Oraon of the same village came from behind and suddenly assaulted her husband with a tangi (sharp cutting weapon) on the back side of his left knee and seriously injured him. As a result of the assault, the major vein of his leg got cut and on account of severe bleeding he died. As per the informant, accused Jatru Oraon bore grudge against them since the brother-in-law of the informant wanted to keep his sister. His brother-in-law was not present at that time and had gone to earn as a labourer in a brick-kiln. On these allegations informant asserted that Jatru Oraon has killed her husband with a tangi and this incidence was seen by other witnesses, who were also beating tiles. The fardbeyan was read over to her and she understood it and thereafter inscribed her left thumb impression in presence of her brother-in-law, Jitram Bhagat.

Since the case was found true after conclusion of investigation police submitted charge-sheet bearing no.21 of 1995 on 20.06.1995 under the provisions of Section 302 of the I.P.C. against the sole accused, Jatru Oraon.

After cognizance and commitment to the learned Court of Sessions, charges were framed against the accused on 9th August, 1995 under Section 302 of the I.P.C. by the learned Sessions Judge, Gumla. The charges were read over and explained to him in Hindi, to which he pleaded not guilty and claimed to be tried. Thus, trial commenced.

Prosecution examined nine witness in total and also adduced certain documentary evidence up to exhibit-5 as under:-

Goge Oraon as P.W.1, Sampati Oraon as P.W.2, Deolait Orain informant of the case (wife of the deceased) as P.W.3, Hari Oraon as P.W.4, Purni Orain as P.W.5, Baisakhi Oraon as P.W.6, Bale Oraon as P.W.7, Jagdish Prasad Singh, Investigating Officer, as P.W.8 and Dr. Mirtunjay Sarangi, Medical Officer, as P.W.9.

Fardbeyan as exhibit-1, inquest report as exhibit-2, seizure lists as exhibits 3 to 3/1, formal F.I.R. as exhibit-4, endorsement on fardbeyan as exhibit-1/1 and post-mortem report as exhibit-5.

After closure of the prosecution evidence statement of accused was recorded under Section 313 of the Cr.P.C. to which he denied his involvement and claimed false implication.

Learned trial court on being satisfied with the evidence on record that the case has been proved beyond reasonable doubt convicted the sole accused for the charge under section 302 of the I.P.C. and sentenced him to undergo rigorous imprisonment for life. Thus, being aggrieved the appellant is in appeal before this Court.

We have scanned the entire material evidence on record in depth and also considered the submissions both on factual and legal grounds urged in support of the challenge to the impugned findings by the learned counsel for the appellant, Mr. Jha and on behalf of the learned Additional Public Prosecutor in support of the findings recorded by the learned trial Court.

As per the learned counsel for the appellant the case of the prosecution suffers from a number of legal and factual infirmities. He has placed the evidence on record at length and submitted that informant P.W.3 (the wife of deceased) is not an eye witness and the rest of the prosecution witnesses such as P.W.2, P.W.4, P.W.5, P.W.6 and P.W.7 have contradicted themselves as to the relevant vital and relevant facts in issue, during course of trial. Learned counsel for the appellant submits that P.W.1, Goge Oraon in paragraph-3 of his deposition in cross-examination clearly stated that he had not seen the victim Mangal falling with his own eyes. His colleague Baisakhia and others told him that Mangal had fallen. He had not seen Mangal being assaulted. Therefore he was not the eye witness to the occurrence. P.W.2 is Sampati Oraon, wife of Hari Oraon(P.W.4). As per her deposition she claims to be an eye witness but at paragraph-2 of her deposition, she has contradicted herself by stating that if she had gone out of the room she could have seen Jatru but since could not get out of the room she had not seen Jatru (the appellant). Mangal (victim) was standing at the door of the room facing inside and who assaulted him from outside was not seen by her. Therefore, she also is not a reliable eye witness. P.W.3 is the informant. Her version is that of a hearsay witness. She heard the incidence from Sampati (P.W.2) who had not seen the occurrence. She only says that when she and Sampati went running towards her husband she had seen Jatru fleeing away with a tangi. During her cross-examination, the defence had put certain questions to her that she along with Goge Oraon (P.W.1) had conspired to kill Mangal and therefore not got him treated properly and that Goge had an illicit relationship with her which was the reason to remove Mangal from their relationship. Learned counsel for the appellant submits that the informant P.W.3 has made a simple denial without explaining the definite suggestions of the defence. Her testimony as a hearsay witness cannot prove the prosecution story beyond what she has heard from other persons like P.W.2 who is not an eye witness. Learned counsel has referred to the deposition of P.W.4 who in his deposition at paragraph-1 clearly stated that he had not seen Jatru assaulting Mangal. He is the husband of Sampati (P.W.2) and during his cross-examination he states that Sampati told him that Mangal had fallen down. He and Sampati had together lifted Mangal and thereafter the wound of Mangal was tied with a piece of Sari brought by Sampati (P.W.2). They together along with Laljeet Oraon got cot from the house of Hari Oraon on which Mangal was laid down. All these acts took about half an hour. According to this witness, the deceased was his cousin brother from his mother's side. This witness was a related and interested witness, who had an interest in ensuring the conviction of the present appellant. Learned counsel for the appellant has referred to the testimony of P.W.5 Purni Oraon, who claims to be an eye witness. However, this witness in cross-examination indicated that P.W.5 along with Hari, Baisakhia, Goge, Sampati, Bale all were beating tiles inside a room and there were lot of tiles where Mangal was standing. According to him he has not seen from which direction Jatru had come since he was inside the room. After Mangal Oraon fell down then they noticed that he had an injury on his leg. Sampati had for the first time informed them that Mangal had fallen down and at that time all of them were facing West and beating the tiles, which was raising lot of noise. They had not heard what Mangal had stated as there was lot of noise due to beating of the tiles. After Mangal fell down Hari and Sampati went towards Mangal and when Sampati raised a brawl then they came to know that Mangal had got injuries. The statement of this witness therefore also does not inspire a confidence that he has seen the occurrence. P.W.6, Baisakhia Oraon has in his chief stated that Mangal was watching the beating of the tiles since Hari had asked him to wait for a while, when he was on way to forest to collect fire-wood. However this witness has also at para-4 of his cross-examination categorically stated that he had seen Mangal after he had fallen down near the door and that wife of Hari had shouted that Mangal has fallen down. He also stated that after Mangal had fallen down Hari and his wife were the first person to reach near the dead body. According to this witness also he was facing West while beating the tiles and Mangal had arrived at about 3.00 P.M. According to this witness at paragraph-6 Magal had fallen down at the door of the room and after his wound was bandaged he was not taken inside the room but carried from the door itself. He has also shown ignorance as to who all had caught Jatru. According to learned counsel for the appellant this witness is also not deposing in a manner as he has seen the occurrence. P.W.7 is Bale Oraon whose testimony has also been placed and submissions have been made on the basis of statements made by this witness in his cross-examination that he had seen Mangal only after he fell down. According to this witness he had not gone out of the room after Mangal had fallen down. According to this witness Mangal was facing towards North and this witness was facing towards South and beating the tiles and could only see Mangal but could not see anything outside as it was surrounded. Learned counsel for the appellant submits that the testimony of these prosecution witnesses who claim to be present at the place of occurrence except P.W.3 do not justify their claim as having seen the occurrence.

P.W.8, is Jagdish Prasad Singh, who was the investigating officer of this case. He had recorded the fardbeyan of P.W.3 Deolait Oraon and proved it to be in his handwriting and signature recorded in presence of witness Jitram Bhagat marked as exhibit-1. He has also prepared the inquest report, which has been proved and marked as exhibit-2. It was prepared in the presence of witnesses Deonath Bhagat and Jitram Bhagat. This witness claims to have seized the blood stained soil from the place of occurrence and prepared the seizure list in presence of the same above two witnesses which has been proved and marked exhibit-3. According to this witness, a tangi was recovered from the house of Jatru Oraon, accused. The seizure list prepared in presence of Balku Oraon and Chhotan Oraon in his handwriting and signature has been proved as exhibit-3/1. The tangi was stated to be lying in the 'maalkhana' of Bishunpur P.S. He has stated that accused was kept tied by the villagers when he arrested him. He had taken the re-statements of the informant and other witnesses. Since the police station was far off from Katiya village, therefore fardbeyan could not be sent in the night. The dead body was sent for post-mortem along with a challan from that place. That is why the fardbeyan was recorded after it was brought to the police station on 13.05.1995. The formal F.I.R. in his signature and handwriting as Officer-In-Charge of the P.S. has been proved as exhibit-4 and the handwriting and signature thereunder has been proved and marked as exhibit-1/1. According to him upon permission of the higher authorities, charge-sheet was submitted. Learned counsel for the appellant submits that defence has cross-examined this witness at length. This witness has not found any blood close to the door. According the I.O. the blood stains were recovered from inside the room but he has stated that he has not recorded the distance between the door and the dhaba whereas P.W.6 has stated that deceased was not taken inside the room. He has not prepared any sketch map of the place of the occurrence. He had also not stated in the seizure list that the tangi, which was recovered was carrying blood stain. He has not sent the tangi for forensic examination. Learned counsel for the appellant submits that medical evidence of P.W.9, Dr. Mirtunjay Sarangi, who conducted the post-mortem examination on the dead body of Mangal Oraon at 11.30 A.M. on 13th May, 1995 disclosed the following ante-mortem injuries, which are described as under:-

"1. Incised wound 4" x 2" x 3" deep semilunar in shape with several underlying vessels and nerves.

Bruise over left side of neck 3" x 2".

Nature of Injuries: Both the injures are antemortem. Injury No. 1 is grievous and caused by sharp cutting weapon, may be tangi. Injury no. 2 was simple and caused by blunt substance such as attempted throttling.

The stomach was empty so the diets might after 4 hours if he had taken meals. The weight of the heart is not mentioned and the lungs are congested. The liver was normal. The weight of liver and lungs has not been mentioned. Nothing has been mentioned about nails. First Aid could easily saved the injured."

A mere perusal of the post-mortem report which has been proved by P.W. 9 and marked as Exhibit- 5 shows that there was one incised wound injury of 4" x 2" x 3" deep semi-lunar in shape over back of left knee surrounding underlying vessels which apparently were not on the vital part of the body of the deceased though the doctor has opined that it caused shock and haemorrhage which was the cause of death. As such even if presuming that the prosecution case is true, the injury inflicted by the appellant were not of such nature, which, in the ordinary circumstances could not have led to death if he was properly treated. There was no repetition of blows or grievous injury on any other part of the body which could show an intent to cause murder on the part of this appellant. Injury no. 2 has been described as simple caused by a blunt substance such as attempted throttling on both sides of the neck. However, this injury has not been corroborated by the testimony of other prosecution witnesses. The evidence brought on record by the prosecution, if read in entirety, on the one hand does not prove the charge against the accused/appellant beyond shadow of all reasonable doubt and even assuming the prosecution case to be true does not fulfill the ingredients of the offence of murder under Section 300 of the I.P.C. The appellant has therefore, wrongly been convicted for the charge under Section 302 of the Indian Penal Code and deserves to be acquitted. According to the counsel for the appellant, the most important witness i.e. Chammu in whose house the occurrence took place has strangely not been adduced by the prosecution in support of its case which leaves a huge dent in the entire prosecution story. The appeal is therefore fit to be allowed by setting aside the judgment of conviction and order of sentence.

Learned Additional Public Prosecutor has vehemently argued in support of the findings rendered by the learned trial court. The evidence on record has been placed by the learned counsel for the State to show that the necessary and relevant facts in issue which constitute the charge of murder have been cogently proved by the prosecution. The time of occurrence is 3.00 P.M. which is undeniably spoken not only by the informant (P.W. 3) but by the other prosecution witnesses such as P.W. 2, P.W. 4, P.W. 5, P.W. 6 as well. The place of occurrence i.e. the house of Chammu, where the tiles were being beaten up by these prosecution witnesses has been proved beyond doubt as the Investigating Officer has also corroborated the place of occurrence from where the blood stained soil were seized. The victim had been assaulted at the door of the room where the tiles were being beaten and in the commotion just after the assault when the victim was profusely bleeding, he was attended by P.W. 2 and P.W. 4 in particular in the first instance. Rest of the prosecution witnesses present there have all affirmed in the same vein that they saw the victim lying bleeding profusely as a result of the injury and more or less all of them have seen Jatru fleeing away from the place of occurrence. Absence of blood stains inside the room is not such a vital infirmity in the prosecution case, if read in totality, since the victim was attended too and his wound were bandaged by P.W. 2 with a saree brought from her house and was put on a cot brought from the house of Hari Oraon. As such, investigating Officer who has found blood stained soil at the door could not have traced presence of blood inside the room if the victim was put on a cot after the wound was bandaged. The victim was taken after attending to his wound and bandage to his own house along with the informant who had arrived on the information of P.W. 2 immediately after the incidence. Since the injury inflicted by the accused by a sharp cutting weapon as also found by the medical expert P.W. 9 during post-mortem examination, were of such nature that it resulted in his death due to shock and haemorrhage without much lapse of time. As such the injury no. 1 which has been described as grievous were sufficient in the ordinary course of nature to cause death, though the same was not inflicted on the head or the upper part of the body of the victim but had the same result. As such the appellant who bore a grudge against the victim and his family due to the fact that his sister was being kept by the brother of the victim as consistently narrated by the informant in her fardbeyan and during trial in her deposition had sufficient motive and intent to inflict a fatal injury on the victim which ultimately was the cause of death. If the prosecution evidence is read in such manner there is no reason to draw imaginary holes in the case of the prosecution to impeach the finding of the learned trial court though it is well reasoned and based on proper appreciation of the entire evidence on record. The appellant therefore, does not deserve any relief in this appeal. The appeal should therefore, be dismissed.

We have considered the submission of learned counsel for the appellant and learned Additional Public Prosecutor representing the State and gone through the entire materials on record including the fardbeyan, framing of the charge, evidence of nine prosecution witnesses, five prosecution exhibits, statement of the accused recorded under Section 313 of the CrPC and also perused the impugned judgment of conviction and order of sentence. Upon careful scanning of the material evidence in entirety, this Court is required to see whether the findings recorded by the learned trial court are proper in the eye of law and based upon correct appreciation of the evidence on record or they suffer from such infirmity that it deserves interference in appeal. As noted above, on behalf of the appellant effort has been made to render the entire prosecution case doubtful by picking up statements of the prosecution witnesses in isolation instead of reading them in entirety. On the other hand, learned counsel for the State has pursuaded us to treat the evidence on record in its entirety and leave aside minor inconsistencies or embellishments which do not affect the core of the prosecution case.

Viewed in proper perspective, we are disposed to treat the evidence on record in the following fashion:

Informant is the wife of the deceased who has supported her case during trial as P.W. 3 in the nature of a hearsay witness. There are necessary relevant facts in issue which are independently and together seen to have been established on behalf of the prosecution to prove their case beyond shadow of any reasonable doubt. If we dissect the case of the prosecution on relevant facts in issue such as the occasion, cause or effect, immediate or otherwise of relevant facts or facts in issue which constitute the state of things under which they happened together with the fact which are relevant to show or constitute a motive and the conduct of the person accused of the offence as projected through the prosecution, we come to the following inferences:

Informant in her fardbeyan and also in her deposition has supported the immediate fact in issue preceeding the assault upon the victim by adequately proving that at around quarter to 3.00 P.M., the victim had proceeded towards forest to collect firewoods. The victim on his way both as per the fardbeyan and on the statement of the informant and other prosecution witnesses had stopped in the way at around 3.00 P.M. at the house of Chammu where several persons such as Baisakhia Oraon (P.W.6), Hari Oraon (P.W.4), Bale Oraon (P.W.7), Gudru (who died before trial), Sampati Oraon (P.W. 2) wife of Hari Oraon (P.W.4) and Goge Oraon (P.W.1) were also present. The victim was asked to wait for a while by Hari Oraon (P.W.4) as per the statement of P.W.4 and P.W.5 as well. The time of occurrence i.e. 3.00 P.M. and the place of occurrence, both stand established by the testimony of these prosecution witnesses such as P.W.1 Goge Oraon, P.W.2 Sampati Oraon, P.W. 4 Hari Oraon, P.W.5 Purni Orain, P.W.6 Baisakhia Oraon and P.W.7 Bale Oraon as well apart from P.W.3 the informant, who in her fardbeyan had also described the same place of occurrence as the victim was lying in a wounded condition at the door of Chammu's house after sustaining the injury on the back of his left knee. The wound was bandaged and he was laid to rest on a cot and thereafter had been brought to his own house. It is here where the learned counsel for appellant has tried to draw contradictions in the testimony of prosecution witnesses who were at the house of Chammu Oraon to show that they were not eye-witness to the occurrence and therefore, not reliable or trustworthy. Presence of P.W.1 , P.W.2, P.W.4, P.W.5, P.W.6 and P.W.7 are corroborated and proved by each other and more particularly by P.W.2 Sampati Oraon who claims to have first witnessed the assault on Mangal Oraon in the back of his left knee by Jatru (the appellant herein). P.W.6 has also named the presence of P.W.4 Hari Oraon, P.W.2 his wife Sampati Oraon, Goge Oraon, Bale Oraon at the place of occurrence. All these prosecution witnesses, therefore establish their presence at the place of occurrence and have also in consistent vein described the activities that they were engaged in i.e. the beating of the tiles in a room in the house of Chammu Oraon. We further find that all these prosecution witnesses are also consistent on the point that Mangal Oraon had stopped by the house of Chammu Oraon and was standing at the door of the room inside which the beating of tiles was being carried by these prosecution witnesses.

We have analysed the testimony of these prosecution witnesses and we find that they have truthfully stated that at the time of beating of the tiles P.W.2 was inside the room which was partially filled with tiles. P.W.4 had seen the victim Mangal standing at the door though he was inside the room facing East; P.W.5 in his examination-in-chief also saw Jatru coming with a tangi and assaulting Mangal (the victim) on the back of his left knee while he was inside the room beating the tiles and facing towards the West; P.W.6 in his examination-in-chief at para- 1 also states that he had seen Jatru came with a tangi and render an assault on the deceased in his left leg, as a result of which he fell down. Jatru started fleeing away whereafter he was caught. This witness was also involved in the beating of the tiles inside the room on the door of which the assault took place. As per his statement made at para- 4 of his cross-examination, he had immediately seen the victim Mangal falling down after the assault and heard P.W.2 shouting. He further stated that both P.W. 2 and P.W.4 Sampati and Hari had first attended Mangal after the assault. P.W. 7 has also in his examination-in-chief stated that Mangal had come and stopped at the door and Jatru came from the behind and assaulted him with the tangi on the back of the left knee, as a result of which, he fell down and when Jatru tried to flee away on brawl being raised, he was caught by the villagers. This witness was also inside the room and had seen Mangal after he had fallen down, since he was beating the tiles facing South while Mangal was facing towards the North. If the evidence of these prosecution witnesses, the presence of all of whom are established at the place of occurrence is picked up in stray manner, it may lead to an impression that none of them have seen the occurrence but if read in entirety it definitely leads to the conclusion that they all were present at the place of occurrence and have seen either the specific assault by tangi on the part of the appellant or the immediate effect thereof when Mangal fell down and Jatru started fleeing away with the tangi. If these facts in issue whether they were previous or subsequent thereto are so connected they form part of the same transaction and constitute the state of things and show the circumstances under which they happened. If the prosecution evidence is read in entirety, it is difficult to discard the statement of these prosecution witnesses. Their presence is neither rendered doubtful nor the manner of occurrence described by them has been impeached by the appellant on any count. The conduct of the appellant in fleeing fromt he place of occurrence and thereafter being caught by the villagers as proved through the mouth of these prosecution witnesses and from where he was arrested by the Investigating Officer (P.W.8) also are relevant facts in issue to constitute the important ingredients which taken together are sufficient to establish the charge against the appellant herein.

The medical evidence on record, as quoted above, of P.W.9 Dr. Mritunjay Sarangi, who conducted the post-mortem on the deadbody of Mangal Oraon unerringly corroborate the specific assault on the back of left knee of the victim Mangal Oraon and the injury sustained as proved through the post-mortem report (Exhibit-5) to complete an important relevant facts in issue to substantiate the case of the prosecution.

We after careful analaysis of the evidence on record as delienated hereinabove, do not bear any doubt that the appellant was the perpetrator of the assault on the victim Mangal Oraon by means of a sharp cutting weapon tangi. However, we are at the same time conscious of the fact that the injury inflicted by the appellant was not on any vital part of the body of the victim such as the head or the upper torso or the abdomen which in the ordinary course was sufficient to cause his death. The injury was on the back of the left knee which incidently caused rupture of a major vein running through his left leg and the deceased succumbed only because of the fact that the injury remained practically unattended due to heavy bleeding. Viewed in this fashion the intention to cause death or to inflict such injury which was sufficient in the ordinary course of nature to cause death as per Section 300 3rdly cannot be attributed to the appellant. Though the intention to cause murder as per the ingredients of section 300 of I.P.C may not have been constituted to convict the appellant for the charge of murder but the appellant was definitely liable for culpable homicide not amounting to murder. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the courts. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the [gravest] form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. The 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. The Apex Court in the case of Sellappan versus State of Tamil Nadu, (2007) 15 SCC 327 has relied upon the observations of Vivian Bose, J. which have become locus classicus. The test laid down by Virsa Singh case AIR 1958 SC 465 for the applicability of clause 'Thirdly' has now become ingrained in our legal system and has become part of the rule of law. In the facts of the present case, it is indeed profitable for us to seek guidance from the illuminating opinion of the Apex Court in the case of Sellappan (supra) relying upon the observations of Vivian Bose, J. in the case of Virsa Singh (supra) to understand the true scope and meaning of the term used by the legislature in these sections so as to avoid any confusion by being drawn into minute abstractions.

"21. Coming to the plea regarding absence of proper medical treatment the argument is clearly unsustainable in view of the Explanation to Section 299 IPC. The explanation clearly contemplates that where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment death might have been prevented. The crucial question is as to which was the appropriate provision to be applied.

"11. ... In the scheme of the IPC culpable homicide is the genus and 'murder', its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the [gravest] form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

Intention

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 -

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

(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; or

(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or;

Knowledge

Section 299

Section 300

(c) with the knowledge that the act is likely to cause death.

(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 commits such acts 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 [to cause death]' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of [the] degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury ... sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature.

For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala is an apt illustration of this point.

In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, 'Thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

The ingredients of clause 'Thirdly' of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (Virsa Singh case, AIR p. 467, para 12)

'12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "Thirdly".

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

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

The learned Judge explained the third ingredient in the following words (at p. 468): (Virsa Singh case, AIR para 16)

'16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is 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.'

These observations of Vivian Bose, J. have become locus classicus. The test laid down by 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. Under clause Thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh's case even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each [other], that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya."

See also Abdul Waheed Khan v. State of A.P. (SCC pp. 183-87, paras 11-23), Augustine Saldanha v. State of Karnataka and Thangiya v. State of T.N."

In the light of disussion made on the basis of the evidence on record and the legal principles laid down on the subject as quoted above, we are satisfied that the case of the appellant does not fall within the definition of murder under Section 300 of the I.P.C. but amounts to culpable homicide not amounting to murder. We are therefore disposed to modify the conviction of the appellant from under section 302 of the I.P.C. to Section 304 Part II of the I.P.C.

Accordingly the sentence of rigorous imprisonment for life also deserves to be modified to seven years of rigorous imprisonment, as it would meet the ends of justice.

As a sequel to the detailed discussions made and the reasons recorded hereinabove, the impugned judgment of conviction and order of sentence is modified in the manner and to the extent indicated hereinabove.

The appeal is partly allowed.

The appellant who is on bail, his bail bond stands cancelled. He is directed to surrender and serve custody for remainder of the sentence.

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.